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The Judge Who Inspired
a Dinner Club
NO REST FOR Rest Home Litigation
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Content for Fall 2016
BOARD OF DIRECTORS
HONORABLE JILL GEHMAN KOESTEL, President
Cover Story:
KURT ALTHOUSE, President-Elect LISA A. SICILIANO, Secretary JUSTIN D. BODOR, Treasurer
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GEORGE A. GONZALEZ, Director PETER F. SCHUCHMAN, Director MARY KAY BERNOSKY, Director MICHAEL A. SETLEY, Director DAWN M. L. PALANGE, Director DANIEL C. NEVINS, Director JESSE L. PLEET, Immediate Past President
Features:
CHRISTIN L. KOCHEL, President YLS
6 Is Sitting Really the New Smoking?
BAR ASSOCIATION STAFF
DONALD F. SMITH, JR., ESQUIRE, Executive Director ANDREA J. STAMM, Lawyer Referral/Secretary KAREN A. LOEPER, Law Journal Secretary PAULA J. ZIEGLER, Communications Manager RAINY LEONOR-LAKE, Community Outreach Coordinator JOHN E. REIGLE, Law Journal Editor AMY J. LITVINOV, Law Journal Assisitant Editor MATTHEW M. MAYER, Barrister Editor
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No Rest for Rest Home Litigation
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My Father at the Center of the Abortion Debate: “Upholding the Law Even When It Gives Rise to Bitter Dispute”
Annual Softball Battle Was Different in 2016 Significant Change to the Divorce Code
32 2016 Family Law Conference 34 One of the Best Gifts Ever! Foundation of Berks County 36 Law 2016 Annual Giving Campaign 37 In Memoriam 38 Solo Conference
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Fun on the Bayou with Frank Mulligan
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BRITT KOBULARCIK, Bookkeeper/Events Coordinator
P U B L I S H E D
The Judge Who Inspired a Dinner Club
Departments: 4
President’s Message
31 Restaurant Review
26 Book Review
35 Spotlight on New Members
30 Miscellaneous Docket
39 Poetry
President’s Message
A cautionary tale Honorable Jill Gehman Koestel, 2016 President
The September 28 Naturalization Ceremony featured Reading Mayor Wally Scott as the keynote speaker. President Koestel shared with the twenty-two new citizens that the Bar Association is proud “to sponsor this ceremony and participate in the historical process of embracing you into our society.”
As I am writing my last President’s message for the Barrister, a news article just reported a fatal accident on I-78. A five-year-old child was killed and open alcohol containers were found in the car. I also recently watched the Diane Sawyer interview of Elizabeth Vargas regarding Elizabeth’s struggle with alcohol abuse. So my last message to all of you is really a very personal, cautionary tale and starts with my first contact with the Berks County Bar Association. It was in 1978, ten years before I became a member of the Association myself, and I was the wife of a brand new lawyer. I encouraged his involvement in his professional association, as well as encouraging camaraderie with his colleagues. I attended the long-since-gone dinner dances that were held every year and sat through many softball games. I also hosted and attended many social gatherings of young lawyers and their wives. Throughout this entire time, my husband was sinking deeper and deeper into the abyss of alcohol abuse. I can’t say that his alcohol use was completely shocking to me. Our relationship began with my admonishment to him that he could either date me or use illegal drugs, but not both. While we were together, illegal drugs were never an issue, however, the abuse of alcohol became an ever-increasing problem in our marriage and generally in his life. Alcohol became so pervasive in his life that he needed to drink every day, frequently, but not exclusively, in the company of other lawyers. He was stopped by police officers on several occasions, but never arrested. The officers would simply follow him home to make sure he arrived safely. I witnessed this occurring from my bedroom window more than once. I even had to get out of bed at 3 a.m. to pick him up near a city bar because he was so drunk that he couldn’t remember where he parked his car. If any of you believe that this lifestyle did not impact negatively on his ability to practice law, you are deluding yourselves. When he finally moved on from me and Berks County, his boss had a real mess to straighten out. Alcohol and sporadic illegal drug use (after we divorced) ruined my now former husband’s life. In fact, it ultimately led to his committing suicide in 1999. The potential that was wasted in this man was extraordinary. I occasionally see some colleagues and friends heading down this same very destructive path. I am not suggesting for one minute that lawyers are any more likely to abuse alcohol than any other demographic group. But I am also not so deluded to think they are any less so, either. When a lawyer does abuse alcohol, and At the courthouse reception honoring the retiring Prothonotary Marianne R. Sutton, President Koestel presented her with an engraved clock, thanking Mrs. Sutton for her 31 years of public service.
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it becomes obvious and counter-productive to his or her ability to adequately practice law, we are a profession that quickly tries to remedy the issue and offer all forms of assistance. Locally, our Association has an arrangement with Dr. Larry Rotenberg to consult at no charge with anyone for whom we have concerns. It can happen with just a phone call to our Executive Director. It is all confidential. At the state level, an attorney can place a confidential call to Lawyers Concerned for Lawyers (888-9991941). Almost forty years ago, such help was not available. My first marriage ended because of alcohol abuse. My former husband’s life ended because of alcohol abuse. He and we were not alone. I have witnessed other marriages end due to substance abuse issues. Other members of our Bar Association have died because they were impaired or were suffering from substance abuse issues. In no part of my personal experience does excessive drinking or other substance abuse produce a good outcome. And this is why I am sharing this very personal and distressing story with you. Long gone are the days when a police officer will escort you home when stopped for DUI instead of making an arrest. You will be arrested. It will probably be public and embarrassing. Coming to court impaired is supposed to result in a report to the Disciplinary Board, and, in my courtroom, it will. Not because I want to hurt any lawyer, but because I cannot allow client(s) to suffer a failure to have their rights properly represented. I have spent a great deal of my Presidency encouraging the participation of young lawyers in our Association. Part of that participation will involve the presence of alcohol and outside socialization with colleagues. As I wrote at the beginning of this message, mine is a cautionary tale. I want my young ’uns to have long, productive and viable careers. I want all members of our great bar to fairly and competently represent clients without suffering the effects of substance impairment. Our society is much less forgiving of mistakes caused by excessive alcohol consumption than it was when my former husband suffered from alcoholism. Our criminal justice system is much less forgiving as well. Please don’t let alcohol ruin your careers or your lives. We should have fun when associating with members of our profession but to do so responsibly. None of us should lose our careers, marriages or lives because of substance abuse. I love all of you and want to spend my golden years hearing and reading about your golden achievements. All of our members are capable of achieving greatness. Don’t let anything stand in your way.
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Kevin Moore
Is Sitting Really the New Smoking? How Your Desk Job May be Killing You By Amy B. Good, Esquire, and Jill M. Scheidt, Esquire
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e know that physical fitness and health are important. The medical community and media outlets of all sort bombard us with this message, along with general body-shaming and nutritional scolding. 70% of adults in the United States are overweight or obese, according to the Center for Disease Control (2013-2014) so most of us need to take heed.1 Regardless of our BMI, we all know that physical activity is a key component in weight management and is essential for health and it does make us feel good, for good reason. Studies show many benefits to physical fitness such as improved mood, healthier weight, reduced stress, improved intelligence and better sleep to name a few. Maybe we know fitness needs to become a priority because our belts are feeling just a little more snug lately. But as busy lawyers, fitting it into our sedentary lifestyles is a tremendous challenge. The Fitbit has been all the rage in the past few years. I often hear that we can improve health by increasing our walking, aiming for 10,000 steps per day. This is the equivalent of approximately 5 miles. But is it enough? If we find the time, can we counteract how much we sit during the day with some walking in the evening? Dr. James Levine, director of the Mayo Clinic-Arizona State University Obesity Solutions Initiative, has been studying the adverse effects of sedentary lifestyles for years. He has reached a dire conclusion and that is, “Sitting is more dangerous than smoking, kills more people than HIV and is more treacherous than parachuting. We are sitting ourselves to death.” He has coined the phrase “sitting is the new smoking,” referring to the discovery decades ago how harmful smoking is on the body, often shortening the lifespan of smokers by years. 6 | Berks Barrister
Dr. Levine, and others who have studied our prevalence of inactivity throughout the modern workday of office workers, all have reached the same conclusion. Prolonged sitting increases the risks of various serious illnesses like certain cancers, heart disease and type 2 diabetes. People who sit all day, and into the evening, die earlier than those with a more active occupation. And most disturbing is the repeated finding that the effects of long-term sitting are not reversible through exercise or other good habits. Meaning that your hour at the gym in an otherwise sedentary day of driving, sitting at your desk and in meetings, does not make up for the harm caused. One way to work some measure of physical activity into our busy work schedule is to adopt a growing trend—the standing desk or the treadmill desk. A standing desk is just what it sounds like: a desk made for working while standing up. It is typically higher than a standard desk to accommodate the user’s height and to be comfortable while writing, typing and performing other work functions. A treadmill desk is a computer desk that is adapted so that the user walks on a treadmill while performing office tasks. It, too, sits higher than a standard desk to accommodate the user. Dr. Levine invented the treadmill desk in an effort to combat the effects he identified. How does it work in practice? Jill Scheidt has been using a treadmill desk since January 2016. “I first saw a standing desk in Steve Otto’s office years ago and was intrigued. Steve is really fit from serious endurance running and said that he works better standing up. Then I started to read about the options. Steve made his desk by himself but I’m not handy. So I purchased a standing Lifespan model desk with a low speed treadmill attachment. The maximum speed is 4.0 mph so it’s only meant for walking, with
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no option for a change in incline. I still have my traditional desk, but love the standing desk feature as an option. It’s large enough that I can work on a file and spread out. When I’m on conference calls I can walk at low speeds. It’s quiet and if I’m on a call I can get some steps in.” The treadmill desk, however, is no substitute for aerobic exercise. “I still have to make the time to do aerobic activity. The treadmill desk is just an alternative to sitting all day.” Stephen Otto has been using a standing desk for four years. “I stand up to work almost exclusively. To remove the temptation to sit down, I removed the conventional desk from my office and my only option is to use my standing desk.” Steve does not make his clients stand; he notes that the conference room table is used for this purpose. Steve jokingly adds that “bathroom breaks have become a welcome respite during the day.”
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Jill Scheidt Another option is the height-adjustable standing desk. Kevin A. Moore, of Leisawitz Heller, has a Voyager model. “I made it a New Year’s resolution to buy one this year, and I now use it in the ‘up’ position four to six hours a day. I feel more productive standing up and not so sluggish after meals or long meetings.” Kevin’s desk was purchased from Mike Riley at Ethosource here in Berks County. He particularly likes that it is adjustable. “I can stand as long as I like and adjust when I need to. It is electric and very quiet in operation.” What do the numbers say? One hour spent in the gym does not improve health outcomes based upon recent studies; however, the standing desk and the treadmill desk help combat that issue
by requiring movement throughout the entire work day. When we sit, our caloric burn is akin to being in a coma. But various studies show that a typical standing desk user burns about 20.4 to 50 calories per hour of standing while a typical treadmill desk user burns about 100 to 130 calories per hour at speeds slower than 2 miles per hour.234 These extra calories burned can help stave off the weight gain that many of us experience as the years go by. More important than calorie burn, both desks require activity throughout the day so the user will obtain all of the benefits regular physical movement affords. It improves posture, blood flow and focus, which are great side effects that won’t appear in your daily step count. This trend has become so popular that one can almost certainly find a desk within any budget. If you’d like to see any of the desks mentioned in person, please feel free to call Jill, Steve or Kevin. Amy B. Good, Esquire, is the manager of the Reading office for MidPenn Legal Services and Jill M. Scheidt, Esquire, is a shareholder at MasanouBradley and frequent contributor to the Berks Barrister. 1 Centers for Disease Control and Prevention, www.cec.gov/nchs/fastats/ obesity-overweight.htm 2 “Calorie burner: How much better is standing up than sitting?”, www.bbc.com/news/magazine-24532996 3 “Put in 5 Miles at the Office”, www.nytimes.com/2008/09/18/health/ nutrituion/18fitness.html: r=0 4 www.Workwhilewalking.com, Dr. Levine
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The Judge Who Inspired
a Dinner Club By Donald F. Smith, Jr., Esquire
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club named after a Berks judge continues to meet more than 87 years after his death. That group is the Endlich Law Club. Even more enduring than the club’s existence, however, is the standing that the club’s namesake, Gustav A. Endlich, had in the legal profession. He was born on January 29, 1856, in Lower Alsace Township, Berks County. At the age of 11, he moved to Germany with his family so that he and his brother, Fred, could gain “the benefit of a thorough preliminary training in the schools of Stuttgart, Tuburgen and Darnstadt.”1 Returning from Germany in 1872, Gustav “entered Princeton University, where his aptitude and diligence in his studies attracted the favorable notice of the faculty and secured for him first honors of his class in his junior year.”2 Upon graduating from Princeton with distinction in 1875 at the age of 19, he began the study of law in the office of the highly regarded George F. Baer.3 During that time in the Baer office, “while the other students were chatting together, [Endlich] would be seen sitting by himself, devouring book Reading Eagle, February 12, 1929, p. 7. Ibid. 3 Mr. Baer provided such training to numerous Berks attorney-aspirants in the late 1800’s. He was to become president of the Pennsylvania Railroad and gain national notoriety when he opposed Clarence Darrow in the miners’ strike of 1902. The Baer Building on Court Street in Reading is named after him. See, The Berks Barrister, Spring 2013, p. 10. Today’s Mogel, Speidel, Bobb & Kershner law firm is a successor to the Baer firm. See, www.msbk-law.com/about-attorneyspennsylvania/history-of-law-firm.html
after book, from hour to hour and from month to month, till the amount of ground which he had covered was simply enormous.” 4 He was admitted to the bar in 1877 and, thereafter, earned a Master’s Degree from Princeton in 1878. “Although he was a relatively successful lawyer, Endlich was more interested in law as a science than as a means of settling the affairs of disputants. He spent a lot of his time in research and writing on various aspects of the law…”5 In 1882, at the age of 26, he published his first treatise, “The Law of Building Associations in the United States.” It was “a volume of 737 pages, of which he published a second edition in 1895. This work [was] recognized as a standard authority upon the subject of which it treats, and has frequently been cited with approval by the highest courts in Pennsylvania and other States.”6 Others at the time viewed the tome as one “whose fullness and accuracy have secured it a very high place.”7 Four other treatises on diverse subjects were to follow and are available for inspection at the Berks County Law Library. When writing these books, Endlich “would frequently stay at his office all night, throwing himself on his lounge at about three o’clock in Continued on page 10
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The Twentieth Century Bench and Bar of Pennsylvania (Volume 1), H.C. Cooper, Jr. Bro. & Co. (1903), p. 63. 5 Dean Emeritus Burton R. Laub, The Dickinson School of Law—Proud and Independent, (1976), p. 223. Hereinafter cited as Laub. 6 Reading Eagle, February 12, 1929, p. 7. 7 The Forum, February 1903, p. 1. 4
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to our civilization,…the principle of individual liberty and responsibility. It is not a mere bit of constitutional bric-a-brac… See to it that your solemn promise to support the Constitution prove not a heedlessness of that which lies at the very bottom of it.”13 For a state trial judge to be so concerned about the rights protected by the Federal Constitution speaks of his devotion to the entire body of law. Further demonstrating his diverse “appreciation of the academic aspects of the law,” Endlich edited the “Criminal Law Magazine and Reporter” for the first five years he was on the bench, and in 1898, at the Annual Meeting of the Pennsylvania Bar Association, he delivered a presentation entitled “Proposed Changes in the Law of Expert Testimony.” The transcript of his remarks extends, in fairly small print, for 32 pages!14 The Reading Eagle noted that the PBA presentation “attracted much attention from the profession at large as a scholarly elucidation of a difficult subject.”15 It led to his election as the PBA’s president in 1909. As part of the nominating process, Cyrus G. Derr, who would later serve as PBA president himself and become known as the dean of the Berks bar,16 referred to Judge Endlich as “a man who shines in the Pennsylvania firmament as a star of the first magnitude.”17 A year later, President Gustav A. Endlich called the PBA’s 16th Annual Meeting to order in Cape May, New Jersey. He then proceeded to give the President’s Address, the transcript of which covers 34 pages.18 The Reading Eagle would later report that his speech “was regarded as a model of learning and as an illuminating exposition of the alms that should be kept in view by those who would improve the application of the law to human affairs.”19 On the bench, Judge Endlich’s “broad and varied legal knowledge” was seen as being “coupled with a native common sense which gave him an unusual facility in the application of the law,” while his written opinions “employed a lucid, virile style that made them models of clearness and precision” for layman and lawyer alike.20 After more than 34 years of service as a jurist, Endlich retired and a special court session was held in his honor on October 30, 1924. More than 100 members of the Berks bar attended, expressing “regret over the physical incapacity which prompted him to retire…” and presenting him “with a huge bouquet of American Beauty roses.”21
the morning, catching a few hours’ sleep, and rising again at six to continue his labors.” 8 “It was only natural for a lawyer having his interest in the academics of law to seek a judgeship.”9 So at the age of 34, Endlich ran for judge in 1889 and was elected to the Berks Court of Common Pleas for a term of 10 years. He would go on to be re-elected three times, serving as Additional Law Judge from 1890 to 1908 and then as President Judge from 1908 until his retirement in 1924. After joining the Berks bench, Endlich pursued “his appreciation of the academic aspects of the law” by serving as an adjunct professor of domestic relations law at the Dickinson School of Law from 1892 to 1901, and was considered “a good teacher and a popular one.” 10 In 1903 he was the School’s commencement speaker; in announcing his selection to be the “Commencement Orator,” The Forum, a publication of the Dickinson School of Law (predecessor to the Dickinson Law Review), reported: “There are no more learned lawyers in the State of Pennsylvania, than is Judge Endlich, and but few, if any, in the United States.”11 The Forum’s June 1903 issue then printed in full the oration titled “Individual Liberty and Thought,” referring to it as “a scholarly talk filled with high thought and eloquence.”12 The Judge’s concluding instruction to the graduates was: “Be not yourselves ‘dumb, driven cattle,’…but do what in you lies to impress…the importance of that principle so vital
The Twentieth Century Bench and Bar of Pennsylvania (Volume 1), H.C. Cooper, Jr. Bro. & Co. (1903), p. 63. 9 Laub, p. 223. 10 Ibid. p. 224. 11 The Forum, February 1903, p. 1. 12 The Forum, June 1903, p. 194. 13 Ibid. p. 204. 14 Volume IV, Report of Pennsylvania Bar Association (1898), pp. 189-220. 8
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Reading Eagle, February 12, 1929, p. 7. See, The Berks Barrister, “An ‘Ornament’ of the Berks Bar Was PBA President 1916-1917,” Winter 2016, pp. 16-19. 17 Volume XV, Report of Pennsylvania Bar Association (1909), p. 308. 18 Volume XVI, Report of Pennsylvania Bar Association (1910), pp. 3-36. 19 Reading Eagle, February 12, 1929, p. 7. 20 Ibid. 21 Ibid. 15 16
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His was a tenure that had him try “upwards of 7,000 cases of every description…besides writing more than 1,700 opinions covering upwards of 7,000 pages of manuscript.” 22 Given his research and drafting of treatises, editing of a law reporter, teaching at a law school and the giving of scholarly speeches, in addition to his incredible judicial production, it is no wonder the Reading Eagle referred to him having “a conspicuous record by reason of his industry.”23 And all without the assistance of a law clerk. Following his retirement, Endlich was named “Judge Emeritus” and maintained an office at the courthouse for several years “to assist in an advisory capacity in the handling of important matters before the court.”24 Lest it be thought that his life was totally devoted to the law, he had married Amy Duffield in 1883, and they had four children, two of whom survived to adulthood. He was considered a skilled musician as well as having a talent for drawing, especially caricatures. 25 Endowed “with the nicest sense of humor” and being so well read made “his companionship interesting in the extreme.”26 His extracurricular activities also included having been an elder at Trinity Lutheran Church as well as being president of the Pennsylvania German Society and presiding over the Board of Trustees of Muhlenberg College for four years. On February 11, 1929, at the age of 73, Judge Emeritus Endlich passed away with his wife and two daughters by his bedside.27 The next morning his death was proclaimed in a large banner headline across the top of page one in the Reading Times,28 signifying his standing in the community. Two days following his passing, the Berks County Bar Association met in special session at the courthouse, the front of which was draped in black.29 A “large outpouring of members of the bar and Court House attaches” were in attendance.30 Dean of the bar, Cyrus G. Derr, who was too ill to attend, had written a letter which was read at the session. He wrote “of the difficult and complicated cases handled by Judge Endlich, and his remarkable decisions, many of which are now used by the higher court in their work.”31 He suggested that the opinions “be published in book form as a monument to him.”32 Among those speaking, Judge F. A. Marx described Endlich as the “very beacon to those who seek and light to who would follow.”33 The Bar Association’s resolution cited his judicial work as having resulted in “recognition which was state and nation-wide” and proclaimed him “one of Pennsylvania’s great trial judges.”34 Continued on page 12
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Ibid. Ibid., p. 1. 24 Ibid. 25 The Twentieth Century Bench and Bar of Pennsylvania (Volume 1), H.C. Cooper, Jr. Bro. & Co. (1903), p. 63. 26 Ibid. 27 Reading Eagle, February 12, 1929, p. 1. 28 Reading Times, February 12, 1929, p. 1. 29 Reading Eagle, February 14, 1929, p. 4. 30 Reading Eagle, February 13, 1929, p. 1. 31 Ibid. 32 Ibid. 33 Reading Times, February 14, 1929, p. 1. 34 Ibid. 22 23
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The Judge Who Inspired a Dinner Club Twelve years later, on August 2, 1941, the portrait of Judge Endlich, commissioned by the Berks County Bar Association, was unveiled by his granddaughter in a special courthouse ceremony. Next to the easel holding the painting was a large vase of American Beauty roses, adding “a touch of color to the setting.”35 A highlight of the ceremony was the remarks delivered by United States Supreme Court Justice Owen J. Roberts. As a young lawyer, Justice Roberts considered Judge Endlich to be “the living embodiment of the administration of justice” and as one “whose life and character I could profitably emulate in my professional life…We who knew him can but call him back in memory, and perpetuate, as best we may, for other generations, the sign and mark of a noble and just man.”36 The portrait now hangs in Courtroom 7A. While the publication of a volume of Endlich opinions, as suggested by Dean Derr, appears never to have been accomplished, the Endlich Law Club was created after the esteemed judge’s death, in part, to compile and digest his decisions.37 In his history of the Berks Bench and Bar, the late Judge Calvin E. Smith wrote: “The Club was made up by a select group of lawyers. Election to membership was by invitation and secret ballot. As a group it had, in its early years, not only educational impact but political as well. Its support was critical for Bar Association office and weighty where aspiration for political office was concerned.”38 Today, its formal educational and political mission has given way to that of being a social purpose, meeting regularly for dinner in area restaurants. For a time, new members were required to give an initiation speech that required some humor or the speaker would suffer severe catcalls. As described by Judge Smith in 1980, “Although learned papers are still delivered, the audience conducts itself very much like that of an old Shakespearian Theater. The speaker needs great courage.”39 When this author gave his initiation speech in May 1995, in an effort to return the club to roots, I attempted to find humor in reviewing those opinions of Judge Endlich delivered in
Reading Eagle, August 2, 1941. One can only assume that Judge Endlich had a particular penchant for American Beauty roses. 36 Ibid. 37 Calvin E. Smith, “Berks County Bench and Bar, A Commentary,” (1980), p. 224. 38 Ibid. 39 Ibid. 35
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personal injury cases during the early part of the 20th Century. One can imagine the audience’s reaction! Although my review was limited to just six opinions, it revealed to me, a former personal injury attorney, that Judge Endlich was fair to both plaintiffs and defendants on the questions of liability and damages. Unfortunately, initiation speeches (a/k/a “learned papers”) are no longer required. Nevertheless, dinner conversations have still been known to launch judicial campaigns. Also, in some respects, the monthly dinner conversations convened in his name represent a continuation of Judge Endlich’s efforts to “improve the application of the law to human affairs.” Even in the absence of initiation speeches, learned observations on today’s practice of law are being shared around the dinner table in a convivial atmosphere. An informal educational and political mission endures. The Endlich Law Club stands as a monument to its namesake, one whose name is worthy of remembrance 87 years after his death and beyond. Judge. Scholar with diverse legal interests. Educator. Prolific, lucid writer. Indefatigable. Musician. Artist. Well read. Good companion. A person of faith. Endeared. The dinner club is a unique honor for a very unique pillar of the legal profession and is a continuing “sign and mark of a noble and just man.” Author’s Note: It is with great gratitude that I thank Tameka Altadonna of the Pennsylvania Bar Association staff, Lisa Adams of the Henry Janssen Library staff and Gail A. Partin, Director & Law Librarian for the Dickinson School of Law of The Pennsylvania State University, Carlisle, PA. Without their generous research efforts, this article would not have been possible.
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Jim Brickman
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March 31-April 9, 2017 Reading, PA
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By Clemson N. Page, Jr., Esquire
FRANCIS THOMPSON “CREDE” McCREADY, Esquire, a character in Frank Mulligan’s new novel, Swamp Book, is quite the Renaissance Man – more about that later; just trust me for now.
We first meet him sitting at the counter, near the cash register, in Bea’s Grill on Sixth Street in Glenside, Wilson County, Pennsylvania. As he’s about to get up, pay his bill, and leave, the stentorian voice of Senior Judge Kessler stops him short. The judge is holding court with some courthouse cronies at a booth in the rear of the restaurant. McCready pauses, sits back down, and listens. What follows could pass as one of the most labyrinthine yarns ever spun on the printed page. For members of our Bar who were around in the ’60s and ’70s, some of the characters and settings will seem eerily familiar, with the inevitable gloss of folklore and hyperbole. Others will seem eerily unfamiliar – maybe even far-fetched. Noticing McCready, Judge Kessler questions him directly about a not-all-that-long-ago case in which McCready, then a junior assistant district attorney just out of Temple Law School and admitted to the Bar, had been swept up, primarily in the role of researcher of the law for the prosecution. The case involved the Woodside Park Murder; five members of the Road Devils motorcycle gang had been charged and tried – and three convicted – in the death of Joyce Mullen, a young woman fond of stargazing at a local lookout spot. Instrumental in the investigation and prosecution of the murder was Grace Schaeffer, better known as Doncaster Rose, a widow possessed of second sight, dressed in black, chain-smoking Chesterfields, sheltering a houseful of cats, and morbidly afraid of flying. Rose’s powers of clairvoyance in the Joyce Mullen case 14 | Berks Barrister
led police to the corpus delicti, beneath the Ferris wheel at the abandoned Woodside Amusement Park. And that’s just part of the back story. Later, Rose and McCready board a jetliner bound for “Norleans” (y’all know where that is, don’t y’all?). McCready has cajoled Rose aboard the aircraft with profuse assurances of safety and a hefty dose of anti-anxiety pills. The purpose of the trip: Attorney Ward Hart of the Orleans Parish Bar has persuaded McCready to recruit Rose to assist in the investigation of an alleged murder in the St. Tammany Parish bayou. The actual swamp boat ride doesn’t occur until the latter part of the narrative. It lasts about an hour from cast-off to mooring. During that boat ride, the story takes a surprise bounce. To know more, you’ll just have to read the book. If you do, you should have paper and pen handy, to serve as a guide in keeping track of the multitude of characters and settings which pop up like ducks in a shooting gallery. My notes are pictured above. If you know Frank Mulligan, you know he’s one hell of a storyteller. If you know and love that aspect of Frank, you’ll enjoy Swamp Boat. But you’ve got to pay attention. Hence the foregoing comment about note-taking. Frank styles himself the creature of a very parochial education, beginning with the Sisters of St. Joseph at Our Lady of the Rosary Grammar School in Philadelphia. He spent his remaining formative years under the tutelage of the diocesan priests at St. Thomas More High School, the Jesuits at St. Joseph’s College (now University), and the Maryknoll Fathers at the American Catholic Foreign Mission Society seminaries in Glen Ellyn, Illinois, Bedford, Massachusetts, and Ossining, New York. After the seminary, Frank sidestepped the priesthood and went
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to work for the Pennsylvania Department of Public Welfare as a public assistance caseworker-investigator in Philadelphia, and later as an urban renewal technician on the Society Hill project with the Philadelphia Redevelopment Authority. During these years, he earned a master’s degree in public administration from Temple University. In 1965, Frank entered Temple Law School, where, among other things, he served as an editor and co-authored two case notes for the Temple Law Quarterly. He graduated in 1968. Frank came to Berks County in 1968 and worked for several law firms, first in public utility law, and then in general practice. He is a past president of the Berks County Bar Association, and a former member of the Pennsylvania Bar Association House of Delegates. In his writing, Frank pulls characters from his working and academic life – as a newsboy, busboy, print shop messenger, caddy, factory worker, social worker, hearing examiner, arbitrator, attorney, college teacher, law lecturer, and student of history, philosophy, theology, public administration, and law. In Swamp Boat, it becomes readily apparent that the protagonist, Francis Thompson McCready, is a fictional surrogate for his creator, Francis M. Mulligan. And that, Dear Reader, is why I characterized McCready a “Renaissance Man” back at the beginning. Mr. Page is a solo practitioner and author of Up Home Book One: Stedman 1903-1909. He is at work on the remaining volumes of the triology.
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My Father at the Center of the Abortion Debate:
“Upholding the Law Even When It Gives Rise to Bitter Dispute” By Daniel B. Huyett, Esquire
[Editor’s note: As the debate over abortion continues during this national election cycle, we remember the role a Berks County lawyer—and later federal judge—had in this controversy. This is the story of that man, Judge Daniel H. Huyett, 3rd, and his contribution to the ever-evolving law on a state’s power to regulate a woman’s right to an abortion.]
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t was January 21, 1992, and the United States Supreme Court had just announced that it would hear the case of Planned Parenthood v. Casey. I immediately called my father, Daniel H. Huyett, 3rd, a federal judge in the Eastern District of Pennsylvania, and said, “Dad, the Supreme Court has decided to hear your case. Let’s go hear the oral argument in April.” I could feel his hesitation over the phone. Those who knew my father knew what he was thinking: “Is this appropriate for the trial judge who decided Casey?” So I said, “Why don’t you call Judge Becker and see what he thinks?” Judge Edward Becker, an appellate judge on the Third Circuit, was one of my father’s closest friends. Not only did Judge Becker think seeing the Casey argument was in order; he made special arrangements for our visit to the Supreme Court. We had no idea at that time that the Supreme Court’s decision in Casey would become the most significant case on abortion since its 1973 blockbuster decision in Roe v. Wade and, in some ways, would eclipse Roe. But we knew that the oral argument before the Court was sure to be historic. As the political commentator and author Jeffrey Toobin observed in his book, The Nine: Inside the Secret World of the Supreme Court, “There were two kinds of cases before the Supreme Court. There were abortion cases—and there were all the others.”
Roe and Its Aftermath, 1973-1986
My father, a lifelong Republican, was appointed to the federal bench in 1970 by Richard Nixon. Just over two years later, 16 | Berks Barrister
the Supreme Court decided Roe and established abortion as a fundamental constitutional right. Any law that infringes such a right must pass the most rigorous form of judicial review known as “strict scrutiny,” which is satisfied only if the state proves that it passed the law to further a compelling governmental interest. In Roe, the Court decided that, while a state has legitimate interests in protecting both the health of the mother and the potential life of the baby, these interests become compelling only after a certain time during the pregnancy, such that the government can constitutionally legislate the matter. In the first trimester, according to the Court, the state’s interests are not yet compelling, and so the state cannot ban or even regulate abortion during the first trimester. But, in the second trimester, the state’s interest in protecting the health of the mother becomes compelling, and the government can thus regulate (but not ban) abortion during the second trimester. And, the Court continued, in the third trimester—i.e., the point of “fetal viability”—the state’s interest in protecting the potential life of the baby becomes compelling, and the government can therefore regulate and ban abortion. According to Jeffrey Toobin, Roe was “the abortion rights decision that still defines judicial liberalism.” My father’s role in abortion jurisprudence began in 1982, almost ten years after Roe, with Thornburgh v. American College of Obstetricians. That year, the Pennsylvania legislature passed the Pennsylvania Abortion Control Act of 1982, which restricted abortion in several ways. The Act imposed a 24-hour waiting period between the time a woman seeking an abortion is provided certain information about the abortion and the time the abortion is performed. It also required, among other things, that this information be disclosed to the woman by the doctor and not by an agent, and that a minor must obtain consent from a parent or a judge before undergoing an abortion. The American College of Obstetricians, represented by Kathryn Kolbert, a 1997 Temple University School of Law graduate, filed a challenge in federal court to the constitutionality of these regulations. The
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case was assigned to my father and marked the beginning of his journey into the controversial and ever-changing jurisprudence governing a state’s attempts to regulate abortion. In December 1982, applying Roe, my father upheld as constitutional all of Pennsylvania’s regulations except for the 24-hour waiting requirement. He determined that the 24hour waiting requirement, which applied regardless of the trimester involved, was unconstitutional for two reasons. First, the state lacked any interest during the first trimester that would justify this burden on abortion. Second, the requirement did not further the state’s compelling interest in the second trimester of protecting the mother’s health. In fact, he found it contravened this interest because the risks associated with an abortion increase with the passage of time. As for the remaining regulations, he concluded they did not impose an undue burden on a woman’s fundamental right to an abortion so as to violate Roe. Not surprisingly, the American College of Obstetricians appealed this decision to the United States Court of Appeals for the Third Circuit. While Thornburgh was pending in the Third Circuit, the Supreme Court in 1983 decided Akron v. Akron Center for Reproductive Health and held as unconstitutional several abortion regulations that were similar to Pennsylvania’s. Relying on Akron, which was unavailable to my father at the time he decided Thornburgh, the Third Circuit reversed his Thornburgh decision, holding that all of the abortion regulations at issue were unconstitutional. The Supreme Court accepted Pennsylvania’s appeal of the Third Circuit’s Thornburgh decision, and heard argument in November 1985. In a 5-to-4 decision, the Court affirmed the Third Circuit’s decision that Pennsylvania’s regulations on abortion were unconstitutional. Justice Harry Blackmun (the author of the Roe decision), writing for the majority, declared: “The States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies.” Among the dissenters in Thornburgh was Justice Sandra Day O’Connor, who recently had been appointed to the Supreme Court by Ronald Reagan and who would later help write the decision in Planned Parenthood v. Casey. She argued that the Court should discard Roe’s strict scrutiny standard that was based on the trimesters of a woman’s pregnancy. Reaffirming a position she had first articulated in her dissent in Akron, she advocated for a less rigid standard that would allow a state to regulate abortion, regardless of the trimester involved, so long as the regulation did not “unduly burden” a woman’s right to an abortion. Under this standard, she said she would have affirmed my father’s decision in Thornburgh.
Casey Begins Journey to High Court
In 1988 and 1989, the Pennsylvania legislature amended the Abortion Control Act, adding regulations on abortion, including many that mirrored the ones held unconstitutional by the Court in Thornburgh. Governor Robert P. Casey signed the law. (Casey, a devout Catholic, was a well-known leader of the pro-life wing of the Democratic Party.) A group of abortion clinics and doctors soon attacked the constitutionality of these regulations, and filed a case called
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Planned Parenthood v. Casey. The cast was familiar: Kathryn Kolbert represented the plaintiffs against the Commonwealth of Pennsylvania, and my father presided over the case. By the time Casey was filed, the Supreme Court’s landmark decision in Roe, which established abortion as a fundamental right, had weathered much scrutiny and criticism, but remained the law. As a result, any law that infringed on abortion was seemingly still subject to strict scrutiny within Roe’s trimester framework. Significantly, the Court had adhered to this rigorous standard of review in Thornburgh, the case in which it invalidated Pennsylvania’s 1982 abortion regulations. Continued on page 18 Fall 2016 | 17
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My Father at the Center of the Abortion Debate Nevertheless, the Commonwealth argued that my father should apply a less rigorous standard. He refused to do so, given the state of the law at that time. He thus applied Roe and Thornburgh, and held as unconstitutional all but one of Pennsylvania’s abortion regulations, deciding most of them were “nothing more than a reenactment of provisions of the Act found unconstitutional by the Third Circuit and United States Supreme Court not long ago in Thornburgh.” To be sure, he recognized “the difficult and controversial issue of the permissible degree of governmental regulation of a woman’s abortion decision,” writing, ”Without question, the issue of abortion has generated much debate and controversy over the past several years. And, undoubtedly, it will likely engender continued debate and controversy over the next several years—perhaps decades.” But he acknowledged his limited role in the battle, explaining, “My function is not to debate the philosophical and moral dilemmas raised by [a woman’s decision to end her pregnancy]. Instead,” quoting Justice Blackmun in Thornburgh, “my function is to ‘uphold the law even when its content gives rise to bitter dispute.’ ” The appeal of his Casey decision to the Third Circuit was assigned to a three-judge panel that included Judge (now Justice) Samuel Alito. In 1991, the Third Circuit, in an 85-page opinion, adopted a different—and, as it turns out, a prescient—approach to the standard of review to apply to abortion regulations. It rejected the 18-year-old strict scrutiny standard, first established in Roe in 1972, and embraced the more forgiving “undue burden” standard that Justice O’Connor had long been advocating, starting with her 1983 dissent in Akron. According to Justice O’Connor—and now the Third Circuit in Casey—an abortion regulation should be upheld so long as it does not impose an undue burden on a woman’s right to an abortion. Changing the rules of review, the Third Circuit reversed my father’s decision and held Pennsylvania’s regulations, with one exception, constitutional. Judge Alito concurred. By the time the Casey case reached the Supreme Court in 1992, eight of the nine justices were Republican appointees. George H.W. Bush was President, and he had appointed Kenneth Starr as his Solicitor General. There was a clear difference between the national Republican and Democratic parties on the abortion controversy, except, of course, for the rare
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Continued from page 17
Democrat, like Governor Casey, who opposed abortion. (Casey was later denied a speaking role at the 1992 Democratic National Convention because of his views on abortion.) Casey’s argument before the Supreme Court was sure to be an historic event. As Jeffrey Toobin observed, “Abortion was (and remains) the central legal issue before the Court. It defined the judicial philosophies of the justices. It dominated the nomination and confirmation process. It nearly delineated the difference between the national Democratic and Republican parties. And, in 1992, the issue—and the Court—appeared to be at a turning point.”
Casey Argument Before the High Court
This was the setting in April 1992 as my father and I drove to Washington, D.C. to hear the Supreme Court arguments in Casey. By this time, my father was getting around mostly in a wheelchair, and so I drove his car, and along the way we picked up my brother-in-law, a Washington lawyer. Although Judge Becker had made previous arrangements for our arrival, the Supreme Court was still a very private institution. As we approached the parking garage underneath the Supreme Court, it struck me that we had no documentation to show to verify our arrangements. But this was before 9/11, and security was not what it is today. As I pulled up to the guard’s shack at the top of the ramp to the underground garage, I lowered my window and said, “Judge Huyett.” Without hesitation, the guard motioned us down the ramp to the underground garage, saying, “Of course.” We drove into the garage under one of our country’s most important institutions, parked, and headed to the private elevator, pushing my father in his wheelchair. As we rolled my father off the elevator, our group almost ran over Governor Casey. We then found ourselves in the lawyers’ holding room just to the side of the justices’ bench. Off to the side, we saw Pennsylvania Attorney General Ernest Preate, readying himself for his argument. We wheeled my father into the courtroom, past a number of rows to a spot off to the side reserved for the handicapped. Then the Supreme Court Clerk called the court to order, and the nine—some would say most important people in the country— took their seats. The Chief Justice, who had succeeded Warren Burger, was William Rehnquist, a leading conservative justice. The justices took their seats in order of seniority, and I recall seeing Justice Blackmun, the author of Roe, taking his seat aside the Chief. The lawyers then entered, took their seats at counsel table, and faced the justices on the bench, who loomed over them like nine towering mountains. Representing the Commonwealth of Pennsylvania and arguing the constitutionality of Pennsylvania’s abortion restrictions was Attorney General Preate. Representing the petitioners, who sought to reverse the Third Circuit’s decision and convince the Supreme Court to find Pennsylvania’s restrictions unconstitutional, was Kathryn Kolbert. Kenneth Starr, the United States Solicitor General, later appointed independent counsel to investigate President Clinton, was there to advocate the administration’s position to reverse Roe. The Court called on Ms. Kolbert to present the petitioners’ argument. She began: “Mr. Chief Justice, and may it please the Court: Whether our Constitution endows government with
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the power to force a woman to continue or to end a pregnancy against her will is the central question in this case.” Then, to everyone’s surprise, she argued for almost eight minutes without any questions from the justices, advocating the “fundamental right” standard of review, relied on by the Court in Thornburgh when it found Pennsylvania’s restrictions unconstitutional. According to Jeffrey Toobin, “A murmur began in the audience, a very knowledgeable group, especially in a big case like this one. Why weren’t they asking any questions? Why were they paralyzed?” The first question was from Justice O’Connor, who asked Ms. Kolbert to address Pennsylvania’s restrictions specifically. When Ms. Kolbert sidestepped her question, Justice Anthony Kennedy asked it again. Twenty minutes later, Attorney General Preate took the podium to argue the constitutionality of Pennsylvania’s regulations on abortion. Not two minutes into his argument, Justice Blackmun interrupted, asking him, “Have you read Roe?” Undeterred, General Preate continued with his argument, urging that the undue burden test should be applied, and that all of the Commonwealth of Pennsylvania’s restrictions should be deemed constitutional. Next, Solicitor General Starr argued. He advocated the administration’s position that the state has a compelling interest in an unborn fetus, and asked the Court to overturn Roe. The oral argument, start to finish, lasted nearly sixty-two minutes—before the Chief Justice thanked the lawyers and closed the matter with the customary phrase: “The case is submitted.”
Casey Decision
On June 29, 1992, the Court announced its decision in Casey. In a plurality opinion, Justices O’Connor, Kennedy, and David Souter, writing jointly, first rejected the calls to overrule Roe. “Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages [citing Roe] that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, asks us to overrule Roe.” But the plurality was not prepared to do that. Rather, they wrote, “[T]he essential holding of Roe v. Wade should be retained and once again reaffirmed.” That essential holding, they continued, comprised three parts: (1) that a woman has a right to choose an abortion before viability without undue interference from the state; (2) that the state may restrict abortion after fetal viability if the law contains exceptions for pregnancies that endanger a woman’s life or her health; and (3) that the state has legitimate interests from the outset in protecting the health of the woman and the life of the fetus that may become a child. The plurality, however, did overrule Roe’s approach to considering the constitutionality of regulations on abortion. Instead of drawing lines for permissible regulation of abortion at the trimesters of a pregnancy, they drew one line at fetal viability, a line that could now be drawn earlier than the third trimester given scientific advancements. The plurality also replaced the strict scrutiny standard with the “undue burden” standard, the standard not available to my father when he decided Casey. Before viability, they wrote, a state may regulate abortion so long as the regulation does not impose an undue burden on the woman’s right to an abortion, defined as “a state regulation [that] has the purpose or effect of placing a substantial obstacle in the path of a
woman seeking an abortion of a nonviable fetus.” Regarding matters after viability, they reaffirmed Roe’s holding that the state may regulate or even ban abortion except where necessary to preserve the life or health of the mother. This decision also essentially gutted Thornburgh, in which the Court had applied Roe’s strict scrutiny standard to invalidate Pennsylvania’s 1982 regulations on abortion and reverse my father’s decision. Applying the undue burden standard, the plurality determined that all but one of Pennsylvania’s restrictions on abortion were constitutional, affirming the Third Circuit’s decision and, in effect, rejecting my father’s decision.
Casey’s Legacy
Today, Casey remains the Supreme Court’s view on how to determine whether a state’s restrictions on abortion are constitutional. This past June, in Whole Woman’s Health v. Hellerstedt, the Court relied extensively on Casey and held that the two major provisions of the Texas Abortion Control Act were unconstitutional. Writing for a 5-to-4 majority, Justice Stephen Breyer spent the first paragraph discussing how Casey’s holding applied to the Texas statute. My father, who died in 1998, would have been proud to see the enduring influence of Casey, a case that had started in his courtroom, where litigants fine-tuned and sharpened their arguments, preparing their roles for a long march to the Supreme Court. My father wouldn’t have cared that the Supreme Court ultimately came out on the opposite side of his decision in Casey. He always knew that, when considering any issue, especially one as politically charged and divisive as abortion, his only role as a district court judge was to apply the existing law and to leave the rest to the Supreme Court. “For now, at least,” wrote my father in the first sentence of his Conclusion paragraph in Casey, “the law of abortion remains undisturbed, because only the United States Supreme Court has the power to change it.” Daniel B. Huyett is co-chair of Stevens & Lee’s litigation department. Mr. Huyett notes that he had substantial help with this article from his son, D. Patrick Huyett, Esquire, a lawyer in Philadelphia who just finished clerking for Judge Marjorie Rendell, and Mark Franek, Esquire, of Stevens & Lee.
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NO REST FOR Rest Home Litigation By Donald F. Smith, Jr., Esquire
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n 2013 and 2014, two opinions of Judge Jeffrey K. Sprecher were published in which he refused to enforce arbitration clauses in nursing home cases. As a former personal injury attorney, I was intrigued. How could the Judge, having cited very little authority to do so, ignore the strong enforcement of the Federal Arbitration Act (“FAA”) by the United States Supreme Court? In fact, I was so intrigued that I then researched the issue in my spare time. My findings were surprising. More on his opinions later. Meanwhile, here in the fall of 2016, there has been no rest for litigators in this area of law. Over the years concerns had been expressed by elder-care advocates and plaintiff attorneys that those seeking admission to nursing care facilities were being forced to sign arbitration agreements whereby they were giving up rights, including the constitutional right to a jury trial, if disputes were to arise between the facility and the resident or the resident’s family. In response, on September 28, the Centers for Medicare & Medicaid Services (“CMMS”) of the federal Department of Health and Human Services issued a regulation prohibiting nursing homes from requiring new residents to agree to binding arbitration. And then, on that very same date, the Pennsylvania Supreme Court delivered a precedent setting decision, by a 4-2 vote, bifurcating a wrongful death and survival action case against a nursing home—meaning that the wrongful death case would go to trial by jury, the survival action to arbitration. A lot to grasp in one day! Effective November 28, the new 713-page CMMS rule applies to more than 15,000 long-term facilities that participate in the Medicare and Medicaid programs. As reported in the New York Times, “the nursing home industry reacted strongly against the change.”1 The leader of one trade group claimed “that the change on arbitration ‘clearly exceeds’ the agency’s statutory authority…”2 Litigation seeking to enjoin enforcement of the regulation cannot be ruled out. In any event, the new CMMS regulation does not apply to admissions prior to November 28. Thus, it remains important, at least for the time being, for attorneys wanting to avoid arbitration in nursing home cases to have a good grasp of the case law in this area of law. New York Times, September 29, 2016, p. B2. Ibid.
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Effect of FAA The agreement that included the binding arbitration clause at issue in the September 28th decision of Estate of Anna Marie Taylor v. Extendicare Health Facilities, Inc., et al, No. 19 WAP 2015, was signed by the resident’s authorized power of attorney. Following her admission to the Defendant’s facility, the resident developed numerous medical complications resulting in her death. Thereafter, her estate filed suit against various defendants, including Extendicare, asserting wrongful death claims on behalf of wrongful death statutory beneficiaries and a survival action claim on behalf of the decedent. Preliminary objections in the nature of a motion to compel arbitration were lodged. In Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), a nursing home arbitration agreement was not enforced in a wrongful death action because the statutory beneficiaries of the action had not signed the agreement. Recognizing that that was also the case in Taylor, Extendicare argued before the trial court that the two claims against it should be bifurcated, asking that the survival action claim alone be arbitrated, since the decedent’s authorized power of attorney had signed the agreement providing for binding arbitration and the wrongful death beneficiaries had not. However, Pennsylvania Rule of Civil Procedure 213(e) requires that wrongful death and survival actions be consolidated for trial to avoid duplication of damages and to allow for judicial efficiency. Thus, the trial court denied Extendicare’s request, but an interlocutory appeal was immediately filed with the Superior Court, who affirmed inTaylor v. Extendicare Health Facilities, Inc., 113 A.3d 317 (Pa.Super. 2015). Appeal to the Pennsylvania Supreme Court was then granted. The Supreme Court’s opinion, authored by Justice Wecht, is a very good review of the FAA, its history and its strong enforcement by the United States Supreme Court. Section 2 of the FAA makes arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” As quoted by Justice Wecht, Dickinson School of Law Professor Thomas E. Carbonneau has written that the United States Supreme Court’s enforcement of the FAA is “a redefinition of civil justice, a modification of the Bill of Rights, and the implicit emendation of the U.S. Constitution.” The
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Revolution in Law Through Arbitration, 56 Clev. St. L. Rev. 233, 246 (2008). So very true.
Injury and Death Cases Not Exempt Enforcement specifically of nursing home arbitration clauses were at issue in Marmet Health Care Center, Inc. v. Brown, __ U.S. __, 132 S.Ct. 1201, 182 L.Ed. 42 (2012). The case involved three negligence suits against nursing homes in West Virginia. In two of the cases, the signed agreements with the nursing home required the parties to arbitrate all claims except for claims to collect late payments owed by the patient. The Supreme Court of Appeals of West Virginia consolidated these two cases with the third, which was before the court on other issues. “In a decision concerning all three cases, the state court held that ‘as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, shall not be enforced to compel arbitration of a dispute concerning the negligence.’” (Citation omitted.) 132 S.Ct. at 1203. “The court thus concluded that the FAA does not pre-empt the state public policy against predispute arbitration agreements that apply to claims of personal injury or wrongful death against nursing homes.” Ibid. The High Court would hear nothing of it. “The West Virginia court’s interpretation of the FAA was both incorrect and inconsistent with clear instruction in the precedents of this Court. The FAA provides . . . no exception for personal-injury or wrongful-death claims. It ‘requires courts to enforce the bargain of
the parties to arbitrate.’” (Citations omitted.) Ibid. West Virginia’s categorical rule prohibiting “predispute agreements to arbitrate personal-injury or wrongful-death claims against nursing homes … is contrary to the terms and coverage of the FAA.” 132 S.Ct. at 1204. The United States Supreme Court did note that the West Virginia court had alternatively found that in two of the cases the arbitration clauses were unconscionable. “It is unclear, however, to what degree the state court’s alternative holding was influenced by the invalid, categorical rule…against predispute arbitration agreements … On remand, the West Virginia court must consider whether, absent that general public policy, the arbitration clauses … are unenforceable under state common law principles that are not specific to arbitration and pre-empted by the FAA.” Ibid.
Unique Bifurcation is Ordered What exactly prevents preemption then? Justice Wecht cites Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987) for the proposition that “courts may refuse to enforce agreements to arbitrate under state laws that ‘arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.’” So, is the compulsory joinder mandate of Rule 213(e) enough of a state law to overcome the FAA? No, says the Taylor majority because the Rule is not a substantive contract defense but is only a procedural mechanism to achieve judicial efficiency. Continued on page 22
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NO REST FOR Rest Home Litigation Justice Wecht notes that “the FAA’s objectives are to ensure the enforcement of arbitration agreements and facilitate streamlined proceedings.” He concedes, however, that Taylor presents a conflict “between the two objectives” and enforcing the arbitration clause in Taylor comes at the “expense of efficiency.” Nevertheless, Justice Wecht, citing Dean Witter Reynold, Inc. v. Byrd, 470 U.S. 213, 221 (1985), concluded that the High Court “has mandated that enforcement trumps efficiency.” Accordingly, the majority held that the FAA preempts Rule 213(e), reversing the Superior Court and remanding the matter for resolution of the plaintiff ’s issues going to the formation of the contract which had not been considered by the trial court prior to the interlocutory appeal.3 One is left to wonder how trying the wrongful death and survival action claims in separate forums will actually work in practice. The questions are numerous. Even Justice Wecht raises the specter of the possible preclusive effect of an arbitration award upon a judicial proceeding due to the doctrine of collateral estoppel, but he does not resolve the issue. One fears that the fallout from Taylor will not be pretty, at least not for those seeking redress for harm inflicted on current residents by nursing care facilities.
Judge Sprecher’s Cases Now, returning to Judge Sprecher’s opinions in McFadden v. 500 East Philadelphia Avenue Operations, LLC, 105 Berks L.J. 350 (C.P. Berks 2013) and Estate of Esther Brown v. Manor Care of West Reading, LLC, 107 Berks L.J. 53 (C.P. Berks 2014). In the former case, Judge Sprecher denied the preliminary objections seeking to enforce arbitration. “To summarily enforce this Agreement which severely curtails plaintiff ’s rights and remedies is inequitable and premature…,” finding that the plaintiff was “entitled to discovery to create a factual record as to the circumstances that led to the execution of this Agreement.” 105 Berks at 356. While on interlocutory appeal to the Superior Court, the case was settled. Brown involved a claim on behalf of the resident’s estate of an alleged assault by a staff member for the defendant. After discovery was completed, Judge Sprecher denied the motion to enforce arbitration for several reasons. There was no proof that the plaintiff had authority to sign the agreement on behalf of her mother (there was no power of attorney); the agreement was an “adhesion contract” as one that is not negotiable; that the provision requiring only a bench trial, and prohibiting a jury trial, if the agreement was determined to be unenforceable, was overreaching, given the constitutional right to a trial by jury. “The Agreement is substantively unconscionable because it violates public policy.” 107 Berks at 64. On appeal, Judge Sprecher was affirmed, but only because the resident’s daughter did not have express or apparent authority to sign on her mother’s behalf. Estate of Esther Brown v. Manor Care of West Reading, PA LLC, et al, No. 1375 MDA 2014 (Pa.Super. 2015).
Continued from page 21
The lesson from the Superior Court’s decision in Brown and my own research findings is clear—to avoid the FAA, the inquiry needs to be limited to the formation of the contract. There was no point in considering, as Judge Sprecher did, that the clause compelling arbitration involved a waiver of the constitutional right to a jury trial, that arbitration was a private proceeding, that a negligence action is not as easy to arbitrate as a business dispute or even that it represents an adhesion contract. For example, in AT & T Mobility, LLC v. Concepcion, 563 U.S. 333, 346 (2011), the late Justice Scalia observed that “the time in which consumer contracts were anything other than adhesive are long past.” (Quoted with approval in Taylor, n. 25.)
Available Defenses Besides the defense that the signatory to the agreement did not have express or apparent authority to sign on behalf of the resident, what other “state common law principles” will render an arbitration agreement invalid? Unfortunately, the United States Supreme Court has provided “little guidance as to what state laws might survive a preemption challenge, because it consistently has held that the FAA preempts state law.” Taylor, n. 28 (citations omitted.) Recent Pennsylvania case law sheds some light. The wife of a husband who had dementia had no authority to sign an arbitration agreement on his behalf when she neither had a power of attorney or had been appointed his guardian. Estate of Donald Washburn v. Northern Health Facilities, Inc., et al, 121 A.3d 1008 (2015). Furthermore, a facility cannot simply rely on the signer’s representation that she or he has a power of attorney to act on behalf of the resident. The facility has “a duty to ascertain the nature and extent of the written power of attorney” because agreeing to waive the right to a jury trial is not the same as consenting to medical treatment of the principal. Estate of Herbert C. Wisler v. Manor Care of Lancaster, PA, 124 A.3d 317, 324 (2015). To have a binding contract, both parties must sign, including the facility itself. In Bair v. Manor Care, 108 A.3d 94 (Pa. Super. 2015) on the first page of the subject agreement none of the blanks for insertion of the names of the contracting parties were filled in. Furthermore, while the resident’s representative had signed the agreement, the signature line for the Manor Care representative was blank, despite the agreement expressly requiring the signatures of both parties. Finally, an explanatory brochure, expressly intended to be attached, was not. Accordingly, with no evidence of mutual consent, there was no binding contract, and the court refused to enforce arbitration. While it has yet to happen at the SCOTUS level, the High Court in Doctor’s Assoc., Inc. v. Casarotto, 517 U.S. 681, 687 (1996) did suggest that “contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening” the FAA. Can an agreement requiring arbitration and waiving the right to a jury trial ever be considered unconscionable under Pennsylvania law? In
The Supreme Court’s Taylor decision calls into question the Superior Court’s decision of Estate of Nannie Burket v. St. Francis Country House, 133 A.3d 22 (Pa.Super. 2016) that relied upon the Superior Court’s Taylor decision in ordering both wrongful death and survival action claims consolidated for trial, and not bifurcated as requested by the defendants therein.
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Estate of MacPherson v. Manor Care, Inc, et al, 128 A.3d 1209 (Pa.Super. 2014) the Superior Court reviewed the terms of an arbitration agreement4 with that issue in mind and found it was not unconscionable. The court explained: “[I]n preparing for arbitration, the Agreement provides that the parties pay their own fees and costs, similar to civil litigation practice in common pleas court. The Agreement contains a conspicuous, large, bolded notification that the parties, by signing, are waiving the right to a trial before a judge or jury…Moreover, at the top of the Agreement, in bold typeface and underlined, the Agreement states that it is voluntary, and, if the patient refused to sign it, ‘the Patient will still be allowed to live in, and receive services’ at Manor Care. Also, the Agreement provides that Manor Care will pay the arbitrators’ fees and costs, and that there are no caps or limits on damages other than those already imposed by state law. Lastly, the Agreement contains a provision allowing the patient to rescind in thirty days.” (Citations to the record omitted.) MacPherson, 128 A.3d at 12211222. What if the contract content cited by the MacPherson court was missing, is the contract then unconscionable under Pennsylvania law? Such an argument should be made, but one wonders if the absence of such content would render the arbitration clause unenforceable, given the strong preemption language in the Taylor opinion. We know from Marmet that the presence of an arbitration clause does not make the agreement unconscionable. So it is doubtful that the font size of the language is dispositive. However, if signing away a constitutional right is a necessary pre-requisite to being admitted to a nursing care facility at a critical time in the life of the individual, why would that not constitute duress? Another unresolved question. Nevertheless, when seeking to avoid an arbitration clause in a case involving a resident admitted to a nursing care facility prior to November 28, 2016, plaintiff ’s counsel is advised to seek answers to the following questions during discovery. Are the blanks for the names of the parties filled in? Are all the documents intended to be attached to the agreement actually attached? Has someone signed on behalf of both parties? Who signed the agreement? If the resident signed, did she or he have the requisite capacity to knowingly sign? If, instead, it was a representative of the resident, was the signing pursuant to a lawful authorization? If done by power of attorney, was the document produced at the time? Can the power of attorney be interpreted to include authority to consent to arbitration? If the case involves a wrongful death claim, have the statutory beneficiaries signed the agreement? Does the agreement state that it is voluntary and, if the person refuses to sign, may the person still live and receive services at the nursing home? Under the contract, are the costs to prepare for arbitration similar to pursuing a common pleas action? Who bears the cost of the arbitrators? No rest for the litigator, but, thanks to the CMMS, relief is ahead. Editor’s Note: The opinions expressed in this article are those of the author and do not represent any position of the Berks County Bar Association. Mr. Smith, the current executive director of the BCBA, was formerly a personal injury attorney with Liever, Hyman & Potter, P. C. Interestingly, the terms of the MacPherson agreement were identical to those of the agreement in Brown.
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Annual Softball Battle Was Different in 2016 The line-up of the annual softball match featuring the Seasoned Lawyers and the Young Lawyers was changed this year. Each team was intergenerational and evenly matched. Nevertheless, Mike Wieder was again the winning coach. Some things never change.
THE PLAYERS (L-R): Kneeling—Matt Setley, Mike Wieder, Kelsey Frankowski, Julie Marburger, Sara Clipp, Chris Garrell, Osmer Deming and Eric Taylor; Standing—Allen Shollenberger, Dan Degler, Greg Henry (already winded from standing), Jack Linton, Judge Rowley, Mike Cammarano, Jr., Jay Kurtz, Tom Twardowski, Federal Judge Schmehl and Andy Howe.
Who was the more distracting pitcher? 24 | Berks Barrister
Jack Linton looks to have beat the throw to first. The 80-year-old can really hustle!
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The post-game picnic was a good time for players and the game’s spectators.
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Fall 2016 | 25
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Book Review Between You & Me
By MARY NORRIS Reviewed by Pamela A. DeMartino, Esquire
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etween You and Me presents Mary Norris’s first run as a writer of words, in contrast to her work at The New Yorker editing words. As a copy editor for over thirty years, Norris culls her literary experiences in what is part memoir, part grammar instruction, and entirely entertaining. Her anecdotal accounts reveal both her wit and keen understanding of the nuances and challenges of the English language. Perhaps best suited for a summer read or a book club study, Between You and Me does offer up some points of general interest and practical advice for those whose legal practice requires written discourse. Norris begins her discussion with an historical synopsis of our country’s early lingo. She tells of Noah Webster (Merriam’s other half and, not surprisingly, a practicing attorney) and his monumental work as our country’s first American lexicographer. Webster’s biography reveals that our nation’s early language was a work in progress as it attempted to incorporate the diverse dialects of varied settlers, while distancing itself from England’s literary rule. Webster’s story, however, explains more than the origins of the first American dictionary. Norris’s interpretation tells of the need for language to adapt to the ever-changing communication demands of a growing country.
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Norris further examines language progression in “The Problem of Heesh,” a chapter devoted to the highly politicized difficulty in the English language of an absence of common-sex, singular pronouns. Our choices include only he, she, or it. The current push-back involves the search for a gender-neutral pronoun, a search that Norris claims dates back to 1850. Repeating the wisdom of A.A. Milne (Pooh’s creator), “If the English language had been properly organized . . . there would be a word which meant both ‘he’ and ‘she,’ and I could write: ‘If John or Mary comes, heesh will want to play tennis,’ which would save a lot of trouble.” A multitude of solutions have actually been debated, briefly surveyed by Norris in relevant part: Someone suggested we borrow ta and ta-men from the Madarin (yeah, like that’s going to happen). Shem and herm sound like Noah’s offspring; ho, hom, hos, if they ever had a chance, would have succumbed to the “ho” problem; se and hir are apparently used by an online group devoted to sexual bondge; ghach is Klingon. And the search goes on. You see, grammar studies can be funny. It is the tedium and anxiety of applying those inconsistent and seemingly
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unbeknownst rules of grammar that tripped us all up in English class and continue to plague our current correspondence. Hence, the popularity of texting where language is completely unregulated. Appearances, however, do matter in the professional world where Norris’s campaign for adherence to certain language rules deserves consideration. She advises, “A misspelling undermines our authority. And an eye for the misspelled word can give you an edge in the workplace.” With regard to the semicolon, Norris warns, “used well, the semicolon makes a powerful impression; misused, it betrays your ignorance.” Establishing credibility with your audience serves as a lodestar for Norris throughout her chapters on commas (a Renaissance invention intended to simply separate things); hyphens (the holiest of which is found in Moby-Dick); dashes (Emily Dickinson’s signature stamp); and apostrophes (its possessive abilities currently under attack by its universal omission in texting). The high school English teacher in me especially enjoyed the chapter on the increased use of offensive language in our everyday lives. Whether this profane use of words has reached an all-time high is, according to Norris, a rhetorical question, but one that she chooses to answer anyway with “Fuck yeah.” I am certain that students would easily grasp the function of the parts of speech if teachers were permitted to use the swear words students speak, read, and hear on a daily basis. “You cannot legislate language,” Norris says, “Prohibition never worked right? Not for booze and not for sex and not for words.” Stand Norris in front of a school board and her pitch would be, “If we are going to use them, let’s use them right. Profanity ought to be fun.” So, too, should writing, or at least not be burdensome or a source of unceasing stress. As our society continues to adopt a casualness in dress, décor, and entertaining, so will our language continue to ease up on some of its grammatical constraints. Whom lost the debate and has been comfortably replaced by who, and no one is ever going to think that “you were he” (as opposed to you were him) sounds right. Norris’s erudite experience in this regard advises that we choose an approach in our writing and “be consistent and try not to make a moral issue out of it.” Clarity in your writing and avoidance of misreading by your audience is the prime objective. Don’t be afraid to test your writing out by reading it aloud (I suggest to my students that they do this in their bedrooms with music blasting); unsuspecting souls in your household should also be enlisted to read through your writing just for the sake of confirming lucidity. The actual merits of your argument can then be adjudicated by the appointed tribunal, who, even if disagreeing with your logic, will respect your authoritative voice and place you among those attorneys held in high, literary esteem. Postscript: The grammatically correct usage is, as the title claims, “between you and me.” Post Postscript: For those of you looking for an obscure
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www.berksbar.org vacation spot, consider Norris’s discovery of the Paul A. Johnson Pencil Sharpener Museum in Logan, Ohio, where over 3,400 pencil sharpeners are on display for those appreciative of the years of charcoal lead and shavings. Pamela A. DeMartino, Esquire, a public school teacher, is an avid reader and frequent contributor to the Berks Barrister.
Fall 2016 | 27
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SIGNIFICANT CHANGE
To The Divorce Code By Jill M. Scheidt, Esquire
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ennsylvania adopted the No-Fault Divorce Act in 1980 which was a seismic change to the long-standing law requiring the finding of fault before the entry of a decree. The law allowed parties, for the first time, to obtain a divorce provided they either agreed that their marriage was irretrievably broken or, if one disagreed, that there had been a three-year period of separation. The court would still be required to find that the marriage was irretrievably broken after the three-year period of separation. The adoption of the No-Fault Act did not replace the faultbased divorce option. Rather, it created a second, potentially less adversarial and seemingly smoother, faster and less expensive option to obtain a divorce. The belief is that since no-fault divorce grounds make it easier for a couple to divorce, a mandatory separation period allows for the possibility of spouses to reconcile before actually ending the entire divorce process. As with many laws, the effect of a three-year contest period proved problematic and facilitated few reconciliations. One spouse could simply refuse to engage in the process, without trying to salvage the marriage, thereby holding the other spouse hostage for the three-year contest period. After the expiration of the three-year separation period, the moving party then requested that the court appoint the Master or the assigned judge would conduct the hearing to resolve equitable distribution and that process could easily add another six to twelve months, not to mention time for appeals. All the while, the financial lives of the parties remain entwined and often the party contesting was the recipient of temporary alimony, irrespective of need or 28 | Berks Barrister
the impact it had on the payor of the alimony. After a few years, the legislature amended the three-year contest period by reducing it to two years. This change occurred in 1988 after many years of lobbying the legislature, and it has remained the law until October 4, 2016. That is when Governor Wolf signed House Bill 380 reducing the contest period to one year. The impetus for the change was to allow families to resolve their financial issues, again more quickly. The PBA Family Law Section spearheaded the change, starting in 2001. The PBA Legislative Department and various PBA leaders over the years educated many on the hill about the pragmatic consequences of the two-year contest period. The PBA identified litigants who testified at hearings about their personal experiences and how the two-year contest period actually caused more turmoil to their families because of the delay rather than the intended benefit of affording time for the family to reconcile. Being stuck in legal limbo during this lengthy process exacerbates family conflict rather than heals it and much of the lobbying was spent educating legislators and groups that are “family friendly� about the opposite effect the two-year waiting period actually has. Interestingly, Pennsylvania’s two-year contest period was rather draconian when compared to other states in the country. Many states have no waiting period and some, such as Ohio and New York, have only a one-year wait, while New Jersey is 18 months, Washington, DC, is six months, and Delaware has none. Should the parties wish to proceed with a fault-based divorce, there is no waiting period. Just the added humiliation and expense of having to prove marital misconduct in a public forum. It is so
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unsavory and expensive that most people do not avail themselves of that option. The reduction to a one-year wait is a welcome change and will require some minor procedural rule changes on the state and local level, but I am hopeful that they can pass rather quickly to conform to the change in the contest period. As for additional substantive changes to the Divorce Code, I have a few suggestions to help streamline the process. I would have the Master appointment trigger an automatic discovery scheduling order so the parties are given firm deadlines. Another area for reform change that is sorely needed is to address the outrageous expense placed upon the litigants for the appointment of the Master. In no other area of the law must a litigant pay to have a trial. Not only do divorce litigants pay very high filing fees for the original complaint, the moving party must pay $825.00 when requesting the appointment of a Master. While I appreciate and respect that the Masters deserve to be paid, it should be a county expense. Our surrounding counties charge far less: Schuylkill County $510.00; Lancaster County - $475.00 (1/2 day); Montgomery County - $400.00; Chester County - $511.00; Delaware County - $300.00; and Philadelphia - $496.98.
The filing fees for a divorce complaint and the Master appointment far exceed $1,000.00 which is a significant barrier to many litigants and therefore families in resolving their conflict. The reality is that many simply give up and settle rather than prosecute. Most divorcing parties find the process confusing, overly burdensome, time-consuming and disappointing. As a practitioner, I see little value in much of the process. Parties just want a fair and swift mechanism to achieve a divorce and economic settlement. Jill M. Scheidt, Esquire, is a shareholder at Masano u Bradley where her practice includes family law as well as criminal defense. She is a Past President of the Berks County Bar Association and currently serves on the Board of Governors of the Pennsylvania Bar Association and is Co-Chair of BCBA’s Family Law Section.
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M i s c e l l a n e o u s
Easy Does It, Inc. has honored District Attorney John T. Adams with the 2016 Making a Difference Community Service Award, recognizing his dedication for solving individual and community problems.
Lori Sandman is the new co-chair of the Solo and Small Practice Section of the Volusia County (Florida) Bar Association. She practices intellectual property law, business law and alternative dispute resolution from her office in Daytona Beach, Florida, and from her home in Berks County. Lori is also an adjunct professor of business law at the Embry-Riddle Aeronautical University.
Being described as a Berks County golf legend, Chip Lutz won his third British Senior Amateur this past summer. He made a 25-foot birdie putt on the first hole of a three-way sudden death playoff in order to win. Chip is the principal of Sentry Abstract.
Charles J. Phillips recently chaired Albright College’s presidential search committee, successfully selecting Dr. Jacquelyn S. Fetrow to succeed Dr. Lex O. McMillan, III, who has been a good friend of the Berks County Bar Association. We wish Dr. McMillan the very best in retirement. Chuck is the managing partner at Leisawitz Heller.
Charles Rick and his wife, Stephanie, welcomed their first child, a daughter, Riley, on August 9. Chad is a principal at Rick|Linn law firm.
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BCBA Past President
The American Institute of Criminal Law Attorneys has placed solo practitioner Daniel P. Emkey on its 2016 10 Best Criminal Law Attorneys for Client Satisfaction list. The selection process is based on client and/or peer nominations, thorough research and an independent evaluation by the Institute.
A Tasty
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Judicial Assignment By Susan N. Denaro, Esquire
When the Honorable Jill Gehman Koestel was tapped by Governor Tom Wolfe this summer to don the black robe and join our Berks County Court of Common Pleas, little did she know that among all the important matters she would be called upon to preside over, her tastiest assignment would be judging the Berks County Children and Youth Service’s Annual Crockpot Cook-Off. Judge Jill enlisted the help of her office staff to carry out her duties. Law Clerk Bonnie Hartman, Judicial Coordinator Leslie Haftel, and Judicial Administrative Assistant Tracey Zeglen, together with yours truly as the tie-breaker, reported for duty at lunch time on October 17, 2016. Seventeen contestants from the four corners of the CYS Office served some tasty offerings for the competition. The primary purpose of the annual CookOff is to raise funds for the CYS Annual Christmas party. All CYS employees are invited to have lunch for a small charge as part of the fun. CYS holds fundraisers monthly throughout the year with the goal of keeping staff morale high and raising money to fully underwrite the much needed Christmas party for those in our local government who do the often emotionally devastating work of improving the lives of children in desperate need of protectors and advocates. If any group of workers in Berks County deserves a party, surely our local CYS staff tops the list. The Crockpot Cook-Off is a clever and delicious event. Although the theme for this food-based fundraiser varies each year, the results are always tasty. There were five categories: one for the Intake workers, one for the In-Home workers, one for the Permanency workers, and one for the Clerical/Fiscal/Intern workers. The final category was an overall grouping for Desserts. Imagine a table lined with 13 Crockpots. It was quite an unusual sight. We were assigned the challenge of sampling the offering from each and
picking a winner for each category, no easy feat given the serious comfort food we were served. Josie Heil, a second shift worker, won the Intake Division with her Buffalo Chicken 7 Dip. Served with tortilla chips, it was the perfect fare for any football game and it had all the flavors one looks for in a good chicken wing dish. She triumphed over a sampling of macaroni and cheese, a traditional lasagna and an especially tasty moussaka that I think merits a very special honorable mention. Wendy Seidle, an in-home manager, won the In-Home Division with a cheesy potato soup offering that featured diced ham. The other Crockpot dishes in that category included a broccoli Velveeta cheese with noodles dish, a sweet corn chowder and an unusual Crockpot ziti that boasted meatballs and slices of smoked kielbasa instead of the traditional Italian sausage. The hands down winner in the Permanency Division was a buffalo chicken chili that could be topped with either blue cheese or a four cheese Mexican blend. We tried some of each and found both cheeses worked well but the blue cheese elevated it a notch higher than a typical chili and helped it emerge the victor. It was the brainchild of Jessica Gallman, a permanency supervisor. The other offerings in that category included a chicken noodle soup casserole and a bourbon BBQ slider. The Clerical/Fiscal/Intern division provided another tough category to judge. Bev Garter, the administrative assistant at CYS, was the smiling victor with a white bean chicken chili chowder
that had the right level of heat. That category also included a more traditional chili, a vegetarian Mexican rice soup and a beefy hash brown dish. Sadly, there were only two offerings in the dessert category. One was a Smores Dip that featured a rich chocolate dip served with marshmallows and graham crackers. The other was a rich sour cream based chocolate peanut butter pudding cake that was equally satisfying. Although we declared a tie in that category, the primary Crockpot Cook-Off organizer, Jessica King, declined to be judged, resulting in Kelli Lewis, an in-home case worker’s chocolate peanut butter pudding cake winning. This tasty event is sponsored by the Retention and Recruitment Committee and the winner of each category received a Dunkin Donut gift card and bragging rights. Surprisingly, we were asked not to pick an overall winner, which was a blessing as the four savory offerings we selected were all so good it would have been difficult for us to have picked an overall favorite. The real winners, however, were the hard-working employees of the Berks County Children and Youth Services Office. Judging by the employees who enjoyed the lunch, with an anticipated profit of $300 being raised at the event, the office morale appeared to be quite high on October 17th. Based upon the smiles on the faces of Judge Koestel’s staff, their morale was equally buoyed that day. With judicial duties such as these, it’s no wonder Judge Jill has settled into life in the Courthouse as quickly and easily as she has. And fortunately for me, she still keeps in touch. Ms. Denaro is with the Wyomissing law firm of Georgeadis\\Setley. Fall 2016 | 31
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FA MI LY LAW CONFE RENCE The biannual gathering planned by Family Law Section Co-Chairs Jill Scheidt and Fred Mogel was well attended on September 15. Lunch, two seminars and a reception made for a full afternoon of learning and fellowship.
Jennifer McAteer, Ann Endres, Board Director Dawn Palange and Mary Favinger
Bob Ullman, seminar presenter Paula Barrett, CPA of RKL, and BCBA President, the Honorable Jill Koestel
The seminars were packed 32 | Berks Barrister
Chris Hoffmann and Judy Kline
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Seminar Presenter Mark Caltagirone, CPA of Herbein, who is a member of the Law Foundation’s Board of Trustees
Equitable Distribution Master Lou Shucker and Eric Diggan
Rebecca Bell and Victor Frederick conferring before the start of a seminar
Family Law Co-Chair Jill Scheidt
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One of the Best Gifts Ever! By the Honorable Jill Gehman Koestel
A
s we are approaching the annual Holiday Benefit Luncheon hosted by the Law Foundation of Berks County and the PICPA, Reading Chapter, I would like to share with all of you the result of the purchase I made last year during the Luncheon’s live auction. I happen to be married to a man who loves baseball and is a big fan of the Phillies (Bob). Bob was born in Philadelphia and spent the first 8 years of his life living there. No surprise, our son ( Jon) also loves baseball and has always been a Phillies fan not counting a few years of misguided Red Sox allegiance during his teen years. Our son also has enjoyed collecting baseball memorabilia over the years. So last year when Mark Caltagirone described the package being auctioned as including 2 tickets for a Phillies game during the 2016 season, a meet and greet with Mike Schmidt and Mike signing a ball or other item, I had to bid on it as a Christmas present for my husband and son. I was shocked when I won the bid at $500! The big day arrived and on August 21 at 9:00 a.m., they left Reading with Mark and his son for a 1:00 game. Prior to the big game date, my son ordered a vintage Mike Schmidt jersey online, and he had that shirt in tow as they drove down to Philly. I will let them tell you the rest of the story. Jill: How long have the two of you been Phillies fans? Bob: For about 55 years. Jon: For as long as I can remember. Jill: Bob, did you ever see Mike Schmidt play? Bob: Yes during the 80’s and he has always been one of my favorite players. Jill: How did your introduction to Mike Schmidt occur? Bob: Mark Caltagirone took us up to the press area of Citizens Bank Park. Mike Schmidt’s agent came out to greet us. Apparently Mike’s agent and Mark are longtime friends. We talked to him for a while and a Phillies employee joined us and gave us a bag of Phillies merchandise. Mike joined us a few minutes after that and talked to us for about 10-15 minutes. Jon: Mike asked if we had anything that we wanted him to sign and I handed him the shirt and he signed it. There was a ball 34 | Berks Barrister
in the bag of stuff the Phillies gave us and I had him sign that too. Jill: What are you going to do with the shirt? Jon: I’m going to get it framed and give it to Dad for his big birthday next month. Bob: You don’t have to do that for me! Jon: I know, but I am anyhow. Jill: What happened after the meet and greet? Jon: Before we went to our seats, a Phillies employee gave us
a tour of the stadium. Bob: We saw the Phillies World Series trophies, a room that had pictures of all of the Phillies players and other areas of the stadium with interesting exhibits. Those two exhibits stand out in my mind. Jill: How were your seats? Bob: The seats were great! Right behind home plate. Jon: And there was a private dining area just for the people in our section. The food was good too. Bob: The only disappointing part of the day was the game itself. The Phillies were awful and they lost. It also started to drizzle towards the end of the game. Jill: Anything else that you want to tell me about your experience? Bob: Being driven back and forth from Philly was great. I hate the hassle of the traffic after ballgames and it was nice to have someone else deal with that. Our seats were also the best seats I’ve ever had at any Big League game. Jon: I was nervous that we might not get to see Mike Schmidt for some reason beyond Mark’s control. He told us on the way down that this was a remote possibility, and I would have been disappointed beyond words if that had happened. As it turned out, we got to meet one of the greatest Phillies of all time and that was great. Jill: And who do you have to thank for this really cool experience? Bob: You, Honey! Jon: You, Best Mom Ever! Thanks so much! (NEVER SAID)
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Spotlight on New Members
By Donald F. Smith, Jr., Esquire
Carl Carrero is the new litigation associate at Roland l Stock, working primarily in the areas of employment discrimination and personal injury. After earning his undergraduate degree at the University of Phoenix, Carl worked for eleven years at Met Ed. He then earned his law degree at Villanova. His hobbies are photography, tennis, traveling, hiking, classic films and music. Judge Madelyn Fudeman’s law clerk is Miranda Lee. Following her graduation from Penn State Capital College with honors in 2005, Miranda was a legal secretary in Pittsburgh, a corrections officer at SCI-Frackville, and state parole agent. While a parole agent, she attended the evening division at Widener University’s law school in Wilmington, graduating in 2012. Thereafter, she has been a prosecuting attorney and then an apprentice to a Pittsburgh arbitrator. Miranda enjoys wine tasting, hiking, baking, small home improvement projects and spending time with friends and her Border Collie, Victor. The new associate attorney at the Smith Law Group is Joel Ready, who is practicing in the areas of civil litigation and criminal defense. At Liberty University he earned an undergraduate degree in media production and Master’s degree in theology. His juris doctorate was earned at Regent University School of Law. He has operated a media production company, Ready Media (www.ReadyMedia.org), and has worked as a counselor/ mentor to college students. Joel’s hobbies include shooting and editing video and photography. Douglas S. Wortman, with the Liberty Law Group, is practicing in the areas of family law, bankruptcy and wills and estates. He has a BA from Kutztown University and a MA from East Stroudsburg University. Doug’s law degree was earned at Widener University, Commonwealth Law School. He had previously worked in intelligence in the United States Air Force. Doug has three children: Jake, 20; Madeline, 17; and Nathaniel, 14. Outside of work he is a baseball coach and enjoys fishing and traveling.
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LAW FOUNDATION OF BERKS COUNTY 2016 ANNUAL GIVING CAMPAIGN The Law Foundation of Berks County’s 2016 Annual Giving Campaign is continuing. As of October 28, 2016, those listed below have graciously given to the Foundation. If you have not already donated, contributions may be sent to
Law Foundation of Berks County, P. O. Box 1058, Reading, PA 19603
Bridge Builder ($1000 or more) Customers Bank Honorable James & Lori Lillis (In memory of Alan S. Miller) Donald F. Smith, Jr. (In memory of BCBA Past President James H. Murray)
Juris ($500 to $999) Richard A. & Carol A. Bausher Frederick L. Reigle & Kathy A. McAlice Frederick & Nancy Nice
President ($250 to $499) Frances Aitken Russell Farbiarz & Alexa Antanavage Howard & JoAnn Lightman (In memory of The Honorable Arthur Ed Saylor) Chris G. Kraras, White Star Tours Jack & Mary Mancuso John J. Miravich William A. Morgan Andrew & Agatha Onwudinjo Charles J. Phillips Cheryl A. Rowe William Rush Sodomsky & Nigrini Carl & Deborah Sottosanti Terry & Pat Weiler
Partner ($100 to $249) Honorable A. Joseph Antanavage Mary Ellen Batman Daniel E. P. Bausher Mark S. Caltagirone
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Pamela DeMartino Merle & Wendy Dunkelberger Ann E. Endres David & Elizabeth Eshelman Susan E. B. Frankowski Honorable Madelyn S. Fudeman James A. Gilmartin Frederick K. Hatt (In memory of Lee E. Sapira) Daniel & Jennifer Nevins Michael & Mary Jean Noon Scott C. Painter Jesse L. Pleet James M. Polyak Gary & Karen Rightmire Jill M. Scheidt Peter & Mary Schuchman Betsy Hawman Sprow Eric L. B. Strahn Honorable Eugene F. Wisniewski
Associate Donald K. Bobb (In honor of Harry W. Speidel) Honorable Richard E. Fehling & Marcia A. Binder (In memory of Joseph E. Lewis) Lynn Feldman Barry D. Groebel Liberty Law Group LLC J. Randall Miller Amy Nieves-Febres Betty J. Schafer Sharon M. Scullin Honorable Mary Ann Ullman Honorable George C. & Shirleen Yatron
In Memoriam Elizabeth K. Morelli Elizabeth Morelli, 48, passed away on August 6, 2016. Ms. Morelli graduated from Holy Name High School, received her undergraduate degree from Villanova University and her law degree from Widener Law School. Ms. Morelli had her own legal practice in which she focused on estate planning. Ms. Morelli was a member of Sacred Heart Roman Catholic Church, was a basketball coach within the Sacred Heart CYO program and was a board member and treasurer of the Berks Catholic Lacrosse Club. Ms. Morelli was an avid golfer, tennis player and Villanova fan who loved spending time with her family and friends. Ms. Morelli is survived by her husband, John, her daughters, Abby and Katie, and her son, Matthew.
James H. Murray James H. Murray, 88, passed away on September 2, 2016. Mr. Murray graduated from Birdsboro High School in 1946, received his undergraduate degree from Dickinson College in 1950 and his law degree from Dickinson School of Law in 1953. Mr. Murray was one of the founding partners of the Miller and Murray law firm. Mr. Murray last served as Of Counsel for Barley Snyder, LLP prior to retiring in 2013. Mr. Murray was active in the community and had served on the board of directors of Conestoga Telephone and Telegraph, Community General Hospital, Daniel Boone Area School District, Law Foundation of Berks County and Maple Springs Swimming Association. Mr. Murray was also a member of St. Mark’s Lutheran Church, Union Lodge #479 F&AM and the Berks County Bar Association, for whom he served as President in 1989. Mr. Murray is survived by his wife, Elisabeth, his son, John, his daughter, Diane, wife of William F. Colby, Jr., Esquire, and six grandchildren.
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Solo Conference The Solo and Small Practice Section, chaired by Charles Rick, hosted its conference and expo on October 19 at the DoubleTree Hotel. It was a worthwhile day of seminars, networking among fellow members and vendors displaying products and services of interest to solo and small firm practitioners.
Sidebar between Jim Stallone (L) and C. Robert Rice
Jay Tract and Steve Welz
Barbara Beringer paid a visit to vendor Jack Long of the accounting firm, Long, Barrell & Co., Ltd. 38 | Berks Barrister
Carl Engleman, Jr. (L) and David Beane, a section member and a vendor for his environmental law focused firm.
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Absorbing the seminar presentation when not posing for the camera as was a frequent contributor to the Barrister
John Grenko (R) visited at the display table for the Berks Bar’s Alternative Dispute Resolution Program, chaired by Past President Fred Hatt (L)
Part of the Main By William W. Runyeon
Our own Kim Lengert, chair of the Pennsylvania Bar Association’s Solo and Small Firm Practice Section, spoke at lunch of the benefits of also joining the statewide section.
It is far easier to live with a playful uncertainty, if the world will end in fire, or in ice, at some smoky, or misty, fantastic time of God’s choosing, than it is, even to address the frailty unto death, no sudden goodbye, that will take most of us to earth’s embrace. Which will go first, the body, or the mind? With the body gone, the mind is somewhere free. With the mind gone, the place of the body is a footnote to that life, an echo of the mind gone, and a memorial, a focus for hope and prayer that the mind, and even something of the soul of the body yet remaining, have found, or will find, another way of being; not in the smoke and mirrors of imagination, joyful though they be, but through conviction borne of hope and experience, the centering weight of the soul, a personal gravity, where ice and fire lie at either end of an identity, a world, even then, at its extremity, earth and mystery, not entire of itself.
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Helping you achieve your goals has always been ours Congratulations to Mark A. Maggs for being recognized on the Barron’s Top 1,200 Financial Advisors list.
Maggs & Associates Mark A. Maggs, CIMA®, CRPC® Senior Vice President – Wealth Management Wealth Management Advisor 610.320.5462 mark_maggs@ml.com
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Life’s better when we’re connected® Source: Barron’s magazine, March 7, 2016, America’s Top 1,200 Financial Advisors list. Advisors considered for the “America’s Top 1,200 Financial Advisors” ranking have a minimum of seven years financial services experience and have been employed at their current firm for at least one year. Quantitative and qualitative measures used to determine the advisor rankings include: client assets, return on assets, client satisfaction/retention, compliance records and community involvement, among others. Barron’s does not receive compensation from advisors, participating firms and their affiliates, or the media in exchange for rankings. Barron’s is a trademark of Dow Jones & Company, Inc. All rights reserved. Merrill Lynch Wealth Management makes available products and services offered by Merrill Lynch, Pierce, Fenner & Smith Incorporated, a registered broker-dealer and Member SIPC, and other subsidiaries of Bank of America Corporation. Investment products:
Are Not FDIC Insured Are Not Bank Guaranteed
May Lose Value
The Bull Symbol, Life’s better when we’re connected and Merrill Lynch are trademarks of Bank of America Corporation. CIMA® is a registered certification mark of Investment Management Consultants Association, Inc. CRPC® is a registered service mark of the College for Financial Planning. © 2016 Bank of America Corporation. All rights reserved. AR37CQNC | AD-04-16-1312 | 471003PM-1215 | 04/2016