New Matter

New Matter

THE AWARD WINNING PUBLICATION OF THE CHESTER COUNTY BAR ASSOCIATION • CHESTER COUNTY, PA | www.chescobar.org

2nd Quarter 2022

In This Issue...

President’s Message: Women in the Law Page 4

Should a Fiduciary Tiptoe in the Crypto?

Page 6

From the Desk of the Executive Director Page 16

Justice Brown-Jackson’s Confirmation to the Supreme Court Page 22

Is My Spouse Entitled to a Piece of My Inheritance if We Divorce?

Page 32

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Content

New Matter CCBA Officers Michelle Bernardo-Rudy, President Bryan L. Nagle, Vice President Donald Lynn, Jr., Treasurer James Doyle, Secretary New Matter Committee Maria Janoski, Editor Rami Bishay Mark Blank, Jr. Ryan Buchanan Charles T. DeTulleo Jennifer Fink Andrew Lehr Shannon McDonald John McKenna Kim Denise Morton Mary Wade Myers Sara Planthaber Karyn L. Seace Bill Wilson

2ND QUARTER 2022

FEATURES Should a Fiduciary Tiptoe in the Crypto?..........................................6 Reducing Business Costs in Q2: What Your Competitors & Clients Are Doing ................................10 Reinforcing the Need for a Solid Benefit Program....................12

Is My Spouse Entitled to a Piece of My Inheritance if We Divorce?........................................32

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

CCBA 2022 Presidents’ Dinner........18

The Blank Page.......................................14

Spring Bench Bar 2022......................19

From the Desk of the Executive Director.........................16

Lawyers Matter Legacies Matter ....................................20 Justice Brown-Jackson’s Confirmation to the Supreme Court .....................................22 Refuse To Be a Victim: Personal and Home Safety...............24

Save Our Environment........................26 Did You Ever Wonder?..........................28 Initial Consult: Kaitlyn R. Macaulay, Esq......................34

Aronimink Golf Club

CCBA Staff Matt Holliday Executive Director Rachel Prince Communications, Events, and Marketing Manager

The Chester County Bar Association’s quarterly publication, New Matter, has been provided to Bar Association members for four decades.

A valuable aspect of CCBA’s membership, New Matter aims to provide our members with information pertaining to current issues facing the practice of law, historic legal issues, continuing legal education opportunities, Chester County Bar Association activities, programs, meetings, functions, practice tips, procedures for attorneys, and items of personal interest to our membership.

The opinions expressed in this material are for general information only and are not intended to provide specific legal or other advice or recommendations for any individuals. The placement of paid advertisements does not imply endorsement by the Chester County Bar Association.

All rights reserved. No portion of this publication may be reproduced electronically or in print without the expressed written permission of the publisher or editor.

Your Ideas!

WANTED . . .

If you have an idea for an article, or would like to submit content, please contact Matt Holliday at mholliday@chescobar.org or (610) 692-1889.

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FIND US ON: New Matter | 3

President’s Message

WOMEN in the

LAW Women’s Presidents Panel

Michelle Bernardo-Rudy, Esquire President Chester County Bar Association

A

s I write this edition’s article, we are wrapping up March 2022. In looking back on the first three months of my presidency, we have accomplished a lot so far. We have traveled to Florida for the PBA Midyear, attended the CCBL in Lancaster and we had our Presidents’ Dinner honoring Sam Cortes, 2020 Chester County Bar President, and John Fiorillo, 2021 Chester County Bar President. I am happy to say it’s been a good three months.

In March, we celebrated Women’s History Month.

It would be wrong for me to exit this month without acknowledging a great woman in our very own bar association. Isabel Darlington was the first woman to join the Chester County Bar Association in 1897. She earned her law degree from the University of Pennsylvania in that same year and practiced law until her death in 1950. She contributed to the Chester County legal community and

4 | New Matter

community at large in many ways, from her work in real estate and taxes to civil law.

Isabel Darlington was not the first woman in the Commonwealth of Pennsylvania to secure a law degree.

That dubious distinction is held by Carrie Burnham Kilgore, who was the first woman to graduate from the University of Pennsylvania in 1883 and went on to practice law. However, Isabel was the first female member of the Chester County Bar and stood proudly on the Chester County Courthouse steps in 1897 for her picture, in a sea of men, no doubt proud and triumphant at her great achievement. Surprisingly, Isabel Darlington remained the only female attorney in Chester County for 45 years, when the next woman, Helen Wade Parke, joined in 1941. Also in 1941, Ms. Darlington became the first female president of the Chester County Bar Association: a distinction held by only twelve women since, including myself. Eight of those female presidents have been in the last 20 years.

For a more detailed history of the paths and obstacles Ms. Kilgore and Ms. Darlington faced in becoming Pennsylvania’s first female lawyers, I recommend a 1995 article written by Gail Long titled, Isabel Darlington, Esquire, Belle of the Bar, which can be found in the Features section of the periodical Pennsylvania Heritage.

As I sit here in my office on Darlington Street, I am grateful to Isabel Darlington for paving the way for women in the legal field and the Chester County Bar Association.

610-429-4020 | christinephennigan.com

115 Westtown Road, Suite 202, West Chester, PA Isabel Darlington, Esquire

I hope we can all appreciate how difficult it was to achieve such a goal. I would also like to thank the following Chester County Bar Association Presidents: Helen Wade Parke (1972), Carol Haltrecht (1985), Mary Ann Rossi (1996), Elizabeth Howard (2001), Cathy Wilson (2002), Andrea Pettine (2008), Kim Denise (Deni) Morton (2013), Lisa Comber Hall (2014), Christine Zaccarelli (2017) and Mary-Ellen Allen (2018).* In the beginning of March, I held a Women in the Law Roundtable discussion. First, it was great to get together with fellow female attorneys from all practice areas. It is amazing to see the amount of government attorneys that attended, as well. I hoped to create a space where we all felt comfortable to share stories and offer advice. I think we achieved that. I have had many members approach me and ask for another one. So, stay tuned, we are working on it!

As the year marches forward, we will have the Spring Bench Bar, the Key Gala, the Bar Sail and a board retreat on the horizon. I hope to see everyone out and about as the weather warms up. I am so grateful to Matt and bar association staff for their hard work and ability to pivot quickly when things go sideways, as they sometimes do. I wish everyone a Happy Spring! Stay well and optimistic! * Historical information obtained from the Chester County Bar Association Archives; See also, Gail Capehart Long, Isabel Darlington, Esquire, Belle of the Bar (1995).

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New Matter | 5

CCBA Feature

Should a Fiduciary Tiptoe in the Crypto?

By Stephen J. Olsen, Esquire Gawthrop Greenwood, PC

O

ver the last few years, my law firm’s tax, trusts, and estate practice has seen a significant increase in questions and issues related to cryptocurrencies and non-fungible tokens (“NFT”). (It is only a matter of time before someone asks about the best way to pass their Metaverse digital land holdings to their children!) While increased tax reporting for crypto is on the horizon, this article focuses on today’s most relevant questions of whether cryptocurrencies, NFTs, and other digital assets are acceptable assets to be held and invested in by executors and trustees, and some planning steps that should be taken for clients that may want their future fiduciaries to significantly invest in these asset classes.

TRACKING & RECORDING DIGITAL ASSETS Before discussing a fiduciary’s considerations in investing, there are some practical considerations for

6 | New Matter

estates and trusts holding digital assets, and for planners assisting clients with them. First and foremost, estate planning attorneys need to ensure they have a method of capturing information regarding digital assets from their clients. This could be through questionnaires or through client discussion, and probably should be with both. Advisors and fiduciaries will need to know what digital assets exist, if hosted on an exchange, or if the private keys are held in one or more wallets. The advisor and fiduciary would also need to know which wallet the private keys are held in, and whether it is a hot (connected to the internet) wallet or a cold (held on a device not connected to the internet) wallet. They will also need to know the location of the seedphrase that can be used to regain access to wallets storing digital assets.

This is incredibly important, as without access to the wallet the executor or trustee would be unable to transfer the asset. This is dramatically different than a traditional securities account, where there are mechanisms in place to obtain control over the assets without the password.

This is a major challenge for planning with digital assets, and planners should discuss this with the client and have a plan in place to ensure the client is able to securely transfer the information to the fiduciary. Another issue is

CCBA Feature that a meaningful percentage of exchanges and hot wallet providers do not allow trusts to hold title to assets stored on those exchanges. Advisors will need to determine if that applies with clients’ digital assets and draft a plan to deal with the issue.

DETERMINING LEGAL ACCEPTABILITY OF DIGITAL ASSETS As to whether fiduciaries should decide to invest in digital assets, cryptocurrencies are not actually legal tender like other currencies under United States law, and, while outside of the purview of this article, almost all cryptocurrencies and other NFTs currently circulating are not securities under United States law (although NFTs could be structured as securities and subject to securities laws). Although not fitting in these classifications, digital assets absolutely are transferable assets that trusts can invest in, and there is nothing illegal or inherently wrong with investing in the asset class.

Since there is no strict prohibition on investments in these digital assets, fiduciaries will need to look to their state’s Prudent Investor Rule to determine the extent to which an investment in a digital asset is acceptable.

Pennsylvania’s statute is found in 20 Pa.C.S.A. § 7203, and states generally that the fiduciary shall invest the property as a prudent investor by considering the purpose, terms, and other circumstances of the trust. The governing instrument can expand or constrict this rule, but the default is that a fiduciary may invest in every kind of lawful investment. The statute also enumerates eight factors a fiduciary must consider in making investments.

The factors are: 1) the size of the trust; 2) nature and duration of the fiduciary relationship; 3) liquidity and distribution needs of the trust; 4) tax consequences of the investment; 5) role of investment in overall investment strategy; 6) an assets special relationship or value to the purpose of the trust or a beneficiary; 7) needs of current and future beneficiaries; and 8) the income and resources of the beneficiaries and any related trusts. As is clear from the factors, the trustee generally has a dual obligation to the current and future beneficiaries.

PRUDENT INVESTOR RULE & RISKS The Prudent Investor Rule is largely based on modern portfolio theory. One of the pillars of modern portfolio theory is that diversification of assets across asset classes is viewed as necessary to reduce the overall investment risk of the portfolio, and this is incorporated into Pennsylvania’s Prudent Investor Rule at 23 Pa.C.S.A. § 7204. As stated above, a fiduciary can invest a portion of the portfolio in any legal investment, which is stated

www.chescobar.org in 23 Pa.C.S.A. § 7203(b). The comments to the law make clear, this includes investments that may have previously been considered too speculative if they are now appropriate. If a court is reviewing whether one or more investments were prudent, it will not review each individual investment to determine whether it was prudent or too speculative, and instead the fiduciary is judged on the results of the total portfolio. This is stated in the uniform law that the Pennsylvania Prudent Investor rule is largely based on and in case law.

In addition to the factors above, in determining whether the investment in digital assets is prudent, the specific risks of digital assets must be considered. Currently, cryptocurrencies are viewed as having regulatory risk that could devalue the asset. For instance, many countries around the world prevent investment and ownership in multiple cryptocurrencies. There could also be a move towards cryptocurrencies that are pegged to certain tangible currencies, which are referred to as stable coins, and that could in theory reduce demand for nonstable coins. There is also some taxation and compliance risk, which would need to be considered. Some NFTs may have a liquidity risk, since they are not traded frequently. One of the primary risks receiving significant coverage for investing in the asset class is volatility risk.

None of these make an investment inappropriate, but are considerations for a fiduciary.

Overall, the Prudent Investor Rule and the underlying modern portfolio theory should allow a fiduciary to invest a portion of an entire portfolio in digital assets without subjecting the fiduciary to liability if the digital asset failed to perform. On the one hand, a fiduciary over a modest trust with significant current distribution would likely face scrutiny if he or she invested a significant portion of the portfolio in cryptocurrencies or NFTs. On the other hand, the fiduciary holding a substantial trust fund that elected to invest two or three percent in digital assets would likely be viewed as investing prudently.

HOW TO TIPTOE Some clients, and perhaps more in the future, will likely not want their fiduciary to be restrained from investing a modest percentage in digital assets. For clients who feel strongly about investing in digital assets, practitioners should consider adding language indicating that digital assets are an acceptable investment class in trust documents, and indicating that the portfolio can be overinvested in that asset class. The drafting attorney Continued on page 8 New Matter | 7

CCBA Feature Continued from page 7

may also want to consider adding language directing a trustee to continue to hold contributed digital assets. In the alternative, if a prospective trustee is uncomfortable investing in digital assets, the drafting attorney should consider allocating the investment authority to a third party with language limiting the fiduciary’s exposure or setting up the trust in a state that allows directed trusts.

Overall, digital assets are clearly an acceptable part of a diversified portfolio. A fiduciary currently would not be at risk if they decided to wait to add the class to the portfolio at this time. Most fiduciaries who decide to invest in the class will be best protected by, when appropriate, tiptoeing in the crypto, by investing only a small portion in a diversified portfolio in this class.

Attorney Stephen J. Olsen is the head of the Tax, Trusts and Estates practice at the law firm Gawthrop Greenwood, PC, and a member of its Business Law Group. Contact Stephen at solsen@gawthrop.com or 610-696-8225. https://gawthrop.com

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New Matter | 9

CCBA Feature

Reducing Business Costs in Q2 What Your Competitors & Clients Are Doing

By Daniel J. Machon, Jr. President and CEO of Benchmark Federal Credit Union

A

s we navigate Q2, the cost of doing business continues to rise across Chester County, the region and nation. For many, a budgeting process that typically occurs annually should now be revisited quarterly or even monthly to keep up with market fluctuations.

I’m seeing this across the board – from the law firms we support with IOLTA accounts, to small- and mid-sized businesses, as well as nonprofits and personal wealth management. Which costs are worth reducing and which reductions can pose a risk to your reputation? As the only federal credit union to exclusively serve Chester County, we are particularly attuned to the ripple effects of such financial decisions.

Cost of goods & services Across all industries, it is widely accepted that businesses are closely watching their bottom lines right now. However, law firms continue to be viewed as a profitable industry. This perception can be especially true for your vendors. We recommend that office managers and administrative staff accelerate price monitoring, price comparisons and negotiation when it comes to purchasing goods and services. Findings should be

10 | New Matter

The rising price of paper, ink, mailing supplies and postage also makes an impa paperless by switching to digital correspondence and digital invoicing when ap Never give up on giving

reported to your management team more frequently for review.

We’re finding that more vendors and suppliers are willing to negotiate to maintain your business, so don’t be shy about asking for a discount when warranted, including for business insurance. While insurance is a necessary cost, you may be surprised to see how widely rates vary.

Refurbished equipment and furnishings Just as you scrutinize opportunities to find savings for goods and services, similarly you should take a closer look at your equipment and furnishing purchases. These costs may be increasing as your workforce continues to return to the office, but buying everything brand new is not always the best choice. According to Entrepreneur, by buying refurbished equipment, you may realize savings that average 30% to 50% of the selling price for the same equipment in new condition. Refurbished equipment is typically fully inspected and comes with a warranty that provides peace of mind. Many of our business clients have successfully cut costs in this manner.

www.chescobar.org

Over the past years,line. manyOur businesses have cut costs by diminishing suppo improve the few bottom outreach efforts resulted in our Chester County community. This was never a consideration for Benchma in Benchmark FCU being named 2020 Business of the and we’re seeing that commitment really differentiate us in the marketplace a Year by the Greater West Chester Chamber of Commerce more than 20 community events and organizations annually. While contributio and honored with the 2021 Corporate Partner Award expense, I don’t believe this is a place to cut. In fact, providing support raises m by Arc of Chester County. We continue to expand our improve the bottom line. Our outreach efforts resulted in Benchmark FCU bein outreach, an approved IOLTAofinstitution the Year byincluding the Greateras West Chester Chamber Commerce and honored wit and community partner of the Chester County to Bar Partner Award by Arc of Chester County. We continue expand our outreach Association.

IOLTA institution and community partner of the Chester County Bar Associatio

Daniel J. Machon, Jr. is the President and CEO of Benchmark Federal Daniel J. Machon, Jr. is the President and CEO of Benchmark Federal Credit Uni Credit Union. The only federal credit union to exclusively serve Chester union exclusivelyFCU serve Chester County, has than been serving the County,toBenchmark has been serving theBenchmark community FCU for more than 80 and years and is known for providing extraordinary service. Benchmark’s A 80 years is known for providing extraordinary service. Benchmark’s Attorney includes yields for IOLTA accounts.regarding an includes Banking premiumProgram yields for IOLTApremium accounts.

For more information For moreChris information IOLTA account, please contact contact Breslin,regarding VP/RetailanServices at Benchmark FederalChris Credit Union, at Breslin, VP/Retail Services at Benchmark Federal Credit Union, at (610) breslinc@benchmarkfcu.net.

To learn more about the products 429-1600 ext. 211 / breslinc@benchmarkfcu.net. To learn more aboutand the services av visit our website at BenchmarkFCU.org.

Anyone who lives, works, products and services available at Benchmark FCU, visit our website at worships, or BenchmarkFCU.org.

Anyone lives, works, worships, or Union. attends school County, PA is eligible to joinwho Benchmark Federal Credit in Chester County, PA is eligible to join Benchmark Federal Credit Union.

Other cuts that really count When it comes to cost reductions that realize significant savings without heavily impacting the client experience, there are a few key ones that continue to surface. Switching from a landline to a VoIP provider can make a big impact.

By auditing your monthly software subscriptions, you may also find significant savings as you unsubscribe from those that are no longer necessary.

As the cost of fuel continues to soar, we’re seeing more business groups share rides to in-person events and client meetings. This has also been a valuable way to reunite teams who are transitioning from isolated workspaces.

The rising price of paper, ink, mailing supplies and postage also makes an impact on your budget. Go paperless by switching to digital correspondence and digital invoicing when appropriate.

Never give up on giving Over the past few years, many businesses have cut costs by diminishing support for outreach programs in our Chester County community. This was never a consideration for Benchmark Federal Credit Union, and we’re seeing that commitment really differentiate us in the marketplace as we continue to support more than 20 community events and organizations annually. While contributions are considered an expense, I don’t believe this is a place to cut. In fact, providing support raises morale, and can even

New Matter | 11

CCBA Feature

Reinforcing E the Need for a Solid Benefit Program

vents over the past couple of years have caused many employees to reconsider their priorities when it comes to choosing benefits.

Employers who have offered traditional benefit packages until recently are finding they may no longer be the employer of choice with an outdated benefit portfolio that doesn’t meet the evolving needs of their workers. Losing key talent is a risk few businesses can endure.

A good, solid employer-sponsored medical program is still a chief concern for employees. At the same time, however, as a result of a heightened awareness of medical and financial needs due to pandemicrelated factors, employees have sought to round out their coverage with benefits such as:

• Income protection (short- and long- term disability coverage) • Critical Illness programs • Hospital Indemnity programs • Mental Health benefits • Financial Wellness benefit programs Adding these programs is neither expensive nor difficult. For employers who are concerned about the impact on their operating budget, an effective solution to accommodate this shift in benefit focus without incurring additional cost is through a voluntary benefits package.

It’s no easy task to continually accommodate shifting employee benefit needs while staying within budgetary restraints; however, the employer who does so will not only win the loyalty of their employees, but better position themselves as an employer of choice going forward.

The Chester County Bar Association offers its members access to My Benefit Advisor as a solution for employee benefits, including voluntary offerings.

For more information about My Benefit Advisor, visit our website at ccba.mybenefitadvisor.com or contact Christopher Sloane at (610) 684-6933.

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Locally Headquar tered New Matter | 13

The Blank Page

Reflections

By Mark Blank, Jr., Esquire

B

efore reading further (that is, if you choose to do so), I urge you to peruse “Reflections” I: Reflections, by the Honorable Mark L. Tunnell (New Matter, Fourth Quarter, 2021).

Long before he became a judge, I referred to Judge Tunnell (hereinafter, “Mark,” “Mark I” or “Judge”) as Mark I and to myself as Mark II. Prior to meeting Mark, I recognized his name. Early on, I became an avid reader of the Chester County Law Reporter. I noted that Mark was the publication’s editor and chief headnote writer (long before my own editorship).

Then, some time in 1978, when I was an associate in a Chester County law firm, I was presented with a research assignment (one of many). My senior advised me to contact Mark who, at the time, was an associate with Cremers, Morris and Greenwood (later known as Cremers, Morris, Greenwood and Tunnell).

I telephoned Mark and left a message with the receptionist. Mark did not know who I was but, nevertheless, promptly returned my call. After I explained the problem, Mark read to me the memorandum that he prepared for his senior partners. (This was long before facsimiles and emails, when such method of communication was customary.)

My next contact with Mark illustrated to me that he was a real Chester County lawyer, representing people from all walks of life as well as businesses and estates. Mark was counsel for the Estate of Darlington, the decedent being a descendant of the founding fathers of West Chester.1 (I had a minimal involvement with the case.)

A little later, there was Berman v. Beale. I inherited the plaintiff, Lily Berman, from the Chester County Lawyer 14 | New Matter

PART II

Referral Service. Bruce Beale owed her about $1700.

Lily had sued Bruce in District Justice Court, where she prevailed. Mark, who had not represented Bruce in the Justice of the Peace Court, took on the appeal. Lily claimed that Bruce had an antique store. In reality, as Mark explained to me, the inventory was not antiquities; it was junk.

Mark did not play games. He walked into the arbitration, approached me, and told me that he would agree to an award. His offer was the total amount of Lily’s claim. Accepted as agreed; award entered.

Some weeks later, I telephoned Mark to discuss payment arrangements. He informed me that Bruce had passed away. Lily, not concerned about the loss of a friend, inquired as to how she was going to be paid. Well, there was no estate, and there would not be one. Of course, a creditor can raise an estate, as I explained to Lily. (I sent her on her way.)

The case illustrated to me that Mark was a gentleman, a squire, a country lawyer. Yes, at that time, most of us were country lawyers in a closely knit bar association, practicing law in a county that was predominantly rural.2

Our next rendezvous was at a Common Pleas arbitration. I was on the Board of Arbitrators with Chairman Lawrence E. MacElree, Esquire. Mark represented the plaintiff in a suit over three pairs of pants.

The issues were who owned the pants and what was the value. My recollection, Mark II, was that Larry led us to rule against you. (Please correct me if I am wrong.)

After Mark joined the big city law firm, Gawthrop, Greenwood and Halsted (n/k/a Gawthrop Greenwood), and became a certified civil trial lawyer, he invited me to join him for lunch at the West Chester Country Club. At Isabelle Darlington, Esquire, was the first female lawyer in Chester County, and president of the Chester County Bar Association in 1941.

2 Exton consisted of an old country hotel, a Howard Johnson’s, a diner and a filling station. Elmer and Peg Polite, soon to form Mr. Sandwich Coffee Shop, owned the Guernsey Cow, which was slightly to the east of the Crossroads.

Charlestown Township was farmland. Phoenixville was a small industrial town. Southern Chester County was redneck country with mushroom farms housing illegal aliens. Coatesville was Lukens Steel and vice versa.

1

www.chescobar.org lunch, we discussed a professional relationship, in which he would refer cases to me that his firm could not handle, and in turn, I would refer trauma work to him, the latter being based on the customary fee sharing arrangement.

Then, in late 1985, Mark advised me that his elderly mother, Isabelle, was ill, and needed a will. He asked me to do the service and I gladly agreed. In fact, I was honored.

At the time, Mark and his family lived in Berwyn, Jill and I lived in Devon and my office was in Paoli. Mark told me that he wanted somebody local to prepare the will.

Isabelle was living at the Baldwin School in Bryn Mawr.

After my second home visit, I recommended to Mark that his mother be taken to stay with Mark, Judy and family, as Isabelle was in pretty bad shape.

I drafted the will in a hurry as I perceived that time was of the essence. The final draft was rather sloppy. At least I thought that it was. But I was fearful that there might not be much time to fix it.

I arrived at Judy and Mark’s house armed with the will and Murray Zealor (the Z-man), an insurance agent who was a Notary Public and knew everyone in the community, including Isabelle.

The will was finalized; signed, sealed and delivered. (I was relieved.) That was a Thursday. I took the afternoon off and, with Jill, began making preparations for our annual party to be held the following Sunday.

Judy and Mark arrived at the door of our house for our party. “How is your mother?” I asked. Mark I: “She passed away.” “My condolences,” I replied with as much sadness as Mark. I really liked Isabelle. She reminded me of one of the very few teachers that I liked at Germantown Friends, where I attended prep school. (If my memory serves me correctly, Mark went to Devon Prep.)

Mark and Judy were regular invitees to our annual holiday gala until 2000, after which we discontinued those parties. A few years after our last party, I sat with Mark and Kevin Ryan at the annual president’s dinner. “What happened to those great parties?” Kevin asked. “Yeah,” said Mark. “That’s what I’d like to know. Shame on you.” Those were good parties, if we may say so ourselves. Our parties were self-catered, with a bartender and two servers. We prepared the hors-d’oeurves and the ambience ourselves.

Now, two and a half years after the passing of Isabelle, Mark referred to me a guardianship case. Three middleaged siblings desired to have their stepmother adjudged incompetent. They needed to take over her personal and financial affairs. Gawthrop Greenwood had a conflict. The attorney for Josephine G. C. was Bill Mahon (later referred to as Honorable). I took the case and, as any matter of this genre, it was difficult and emotional.

Mark became president of the Chester County Bar Association in 2003. We worked together on various committees. We both had a keen interest in the history of the Chester County Bar and, thus, the Historical Committee. As chairman of the Newsletter Committee (as it was then known) and editor of New Matter, Mark’s wit and humor (a prime feature of New Matter when it was a monthly publication) could not be matched.

One day, Mark approached me while I was walking on my way to a meeting at the Bar Association. He asked me (or maybe accused me) if I was a Democrat. “No.” In my past, I had been both a Dem and a GOP. I guess he wanted to know if I was competing with him in his race for a judge. I proudly advised him that I was an Independent, always have been and always will be; and that I was not interested in running for judge.

Notwithstanding my lack of party affiliation, I endorsed Mark and contributed to his campaign, not so much because he was a longtime friend and colleague but, more so, that I thought that he would make a good judge. And that he did. Being a dedicated and consistent reader of the Chester County Law Reporter, I perused his published opinions. They were thorough, detailed, complete, and with a logical application of the law to the facts in each case. His judicial style was akin to Judge Wood’s, whose opinions I have always admired.

Towards the end of Mark’s career on the Bench, he authored Estate of Thouron, Deceased, Chesco., O.C. Nos. 1507-0230, 1506-0305 (objections to final accounts).

This was a 222-page opinion and adjudication involving a case that spanned over nine years and concluded with a fourteen-day trial. I read the entire opinion, which was as if I were reading seven chapters from an estate and trust administration textbook. In the end, Judge Tunnell ordered huge disgorgements of fees and/or surcharges against the fiduciaries, including the attorneys. The opinion made me think of Judge Leonard Sugerman in Hepps v. Philadelphia Newspapers and Commonwealth v. the Johnstons. Among many other attributes, this illustrated that Judge Tunnell was key to an independent judiciary.

Finally, I had the joy of working with Mark in the Stively Players: able, witty, singer/songwriter/actor and commentator. Although the Stively Players is no longer active (disbanded?), to me, the legend of the Players lives on.

Judge Tunnell decided not to run for retention at the completion of his term. And I take it that he opted not to go to senior status. So, Mark I is enjoying his retirement as is Mark II.

New Matter | 15

From the Desk of the Executive Director

www.chescobar.org

Spring Has sprung!

H

opefully, by the time you are reading this we are reaching daily highs of 62 degrees or warmer.

For those who don’t know me, I have had the privilege of being the Executive Director of the Chester County Bar Association for just under two and a half years.

We have a lot of exciting things going on at the Bar! For starters we have a number of great events coming up over the next few months.

Please get your reservations in now for our Bar Foundation Key Gala, which will be held on Thursday, May 12th at Penn Oaks. This night is entirely about supporting our Foundation as it seeks to raise money to support local charities like the Domestic Violence Center of Chester County, Legal Aid, and the Crime Victims’ Center of Chester County just to name a few. Last year we were able to give away $175,000 to vital charities in our community in part due to the very successful Gala we held, and the generosity you exhibited. We will also have a very lively Auction full of trips and other great prizes for you to bid on.

Bar Sail is headed back to Baltimore Inner Harbor this year on Thursday, June 16th, and registration for this fun event should be up for you to peruse. If you aren’t big on boats, keep in mind you can always just drive down and join us for dinner and drinks and stay over for what is sure to be a memorable night.

Additionally, we will be hosting a plethora of CLEs and Happy Hours, so keep your eyes posted for these announcements as they come out!

If you are looking to grow your practice, keep an eye out for our Lawyer Referral Service registration, which will be opening up in mid-May. We have 95 attorneys currently in the program, and last year alone those folks reported receiving over $550,000 in attorneys’ fees from referrals they received through the program. If you are interested in learning more about this program, please call our office and ask to speak to Lauren Shea who is our LRS administrator.

On a personal note, it is my hope that if we don’t yet know each other we get the chance to meet at some point this year, and that if you do know me, we have the opportunity to spend plenty of time catching up over the next 9 months.

16 | New Matter

Chester County Bar Association Executive Director Matt Holliday

As always, thank you for being part of our Chester County Bar Association community. Through your support we are blessed with the opportunity to make this little corner of the world a much better place.

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2022 CCBA Presidents’ Dinner Honoring our 2020 & 2021 Presidents, Samuel Cortes, Esq. (2020) and John Fiorillo, Esq. (2021)

18 | New Matter

Spring BENCH BAR 2022

SAVE THE DATE: 2022 FALL BENCH BAR Sept. 29th - Oct. 1st |

The Alexandrian, Alexandria, Virginia

New Matter | 19

CCBA Feature

LAWYERS MATTER. LEGACIES MATTER. Lawyers matter. A lot. Days and evenings are filled with clients seeking guidance to deal with complicated situations, and advocating for clients during some of the most challenging times in their lives. This is extremely rewarding, and it can be all-consuming. Yet despite the pressure and time commitment, we are heartened to see so many attorneys serving on nonprofit charitable boards. Why do they do it? What skills do lawyers bring to the Board table? What do lawyers get out of Board service? We interviewed several Chester County Community Foundation Board members to find out...

CONSTRUCTIVE, IMPACTFUL COMPASSION: Donald Lynn, Esq., of Larmore Scarlett in Kennett Square believes, “Lawyers should use their degree to make things at least a little better for other people. We do this as a profession, and we also do this as volunteers. A lot of my clients care deeply about the community. When my clients have charitable intent, I want to help channel their compassion to causes that will use their planned gifts wisely for perpetuity. I tend to bring forth the Community Foundation as an option if a client wants ongoing support to learn more about ever-changing community needs, and discern legitimate charities that do cost-effective, impactful good work over the years.”

HEALTHY SKEPTICISM & PASSION: Stephanie Pahides Kalogredis, Esq., of Lamb McErlane in West Chester explains, “I brought my toughest client to the Community Foundation. And when that satisfied client agreed to create a legacy fund, it was a ‘win.’ That client was my husband (Bill Kalogredis, Esq.) in consultation with his wife (me). We are passionate about deepening our legacy commitment to our favorite charitable causes, including education and Greek culture.

Serving on nonprofit charitable boards is just another way to show our support. As attorneys, we maintain a healthy skepticism. We want proper verification of the salient details, especially when it comes to large sums of money and charities. We try to use our background to enrich the boards we serve on and the goods works of the charitable nonprofits.

20 | New Matter

NETWORKING, LEARNING, LISTENING, ANALYZING: Day & Zimmermann in-house counsel John Allegretto, Esq., is in a unique position. “I learned a great deal about the Foundation over a decade ago, as an intern. I kept in touch, networking at Sweet Charity and Annual Meetings. I learned about regional charities by serving on Grant Panels. On the Investment Committee, I listened carefully to take in all relevant information, analyzed it, and probed actions taken.” John continues, “Many nonprofits recruit younger board members, as a way to be more resilient and face new trends head on. But some nonprofit boards end up consistently rejecting the younger point of view, and this is a great loss for the sector. The best boards, and the best nonprofits, embrace diverse points of view and are continually in lifelong-learning mode.”

TECHNICAL KNOWLEDGE & COMPELLING CASE: Jacqueline Motyl, Esq., of Fox Rothschild in Exton often finds that her technical knowledge of Nonprofit Law is a boon to her board service. “Corporate best practices such as signatory policies, conflict policies and document retention policies are important, along with experience in unique gifts of S corporation stock and real estate.” Jacqueline also assists philanthropic families, which has contributed to her ability to think practically as a board member. “We help our clients consider all the philanthropy options and choose what’s right for them: private foundation formation, commercial donor advised funds, and community foundation legacy funds. Seeing how clients make charitable decisions has given me a unique perspective that can be applied to various strategic planning opportunities presented to the boards on which I sit.”

COMMUNICATION, CREATIVITY, GOOD JUDGMENT & SOLUTIONORIENTED: A partner at Lamb McErlane with offices in Oxford, PA, Winifred Moran Sebastian, Esq., finds that, “the skills used in the practice of law easily transfer to serving on nonprofit boards.”

Winnie also notes, “Lawyers prepare by researching an issue and then present that to the client or opposition.

Effective nonprofit board members also research both

www.chescobar.org projects for the nonprofit and potential donors before presenting that information to the board or the donor.

Both functions require knowledge and creative thinking for a good result. Keeping an open mind and listening carefully are other indispensable qualities that lawyers can bring to the nonprofit board room.”

LONG VIEW/PERSEVERANCE: Successful attorneys persevere through the challenging times, to get to the rewarding and meaningful moments that make it all worth it. “Sometimes, it’s about planting a seed, and having the patience to see if it grows,” explains L. Peter Temple, Esq., of Larmore Scarlett in Kennett Square. “Planned giving legacy philanthropy can take 3-20 years to come to fruition, and it happens on a donor’s terms. It’s about building meaningful, authentic relationships over years, sometimes decades. Board members need to honor the nonprofit’s past, deal with present issues, and shape the future. Board members need to keep current and resilient, yet have a long-term perspective. There’s no reason to sugar coat it: serving as a nonprofit board leader is complex stuff, even for attorneys.”

Whether your passion is educating the citizenry, eradicating hunger, environmental protection, ensuring social justice, cultivating creativity and the arts…the nonprofit sector has it all. There are 800 registered nonprofit charities in Chester County to choose from, and 1.5 million across the U.S. The Community Foundation stands ready to connect people who care with causes that matter, so legacies make a difference, now and forever.

Please join us to celebrate Community Foundation board leaders on Sunday afternoon, June 5 at Waynesborough Country Club.

Questions? Contact: Karen Simmons, President/CEO, or Jason Arbacheski, CAP®, Director of Gift Planning and Stewardship, Chester County Community Foundation 28 W. Market Street, West Chester, PA 19382 (610) 696-8211 | jason@chescocf.org | www.chescocf.org

Celebrate Chester County Community Foundation Board Leadership at Chair’s Choice Sunday, June 5, 2022 3-5 pm Waynesborough Country Club 440 Darby Paoli Road ~ Paoli, PA

www.chescocf.org

HONORING Michael DeHaven, CPA, Outgoing Board Chair Winifred Moran Sebastian, Esq., Incoming Board Chair THANKS TO OUR OUTGOING BOARD MEMBERS (2021 & 2022) Joanne Peskoff Bear, Esq. ~ Kathy Dean-Bradley, CPA Margaret Freeman ~ Michael Horak, CFA Donald B. Lynn, Jr., Esq. ~ Cindy Sineath Ray, CPA

New Matter | 21

CCBA Feature

Justice Brown-Jackson’s Confirmation to the Supreme Court

One doesn’t have to operate with great malice to do great harm. The absence of empathy and understanding are sufficient. – Charles M. Blow

By Erin Bruno, Esquire Public Defender, County of Chester

M

y five-year-old asked one morning over Cheerios: “Why are we here?” I hid my surprise and pivoted to the old “When a mommy and a daddy love each other very much...” but he's too quick for me: “Not how!” he insisted. “Why? Why are people? Why do we exist?” In an un-caffeinated fugue, I mumbled something to the effect of: “To help all other people, as much as we can, wherever we are.” I do not know from where my brain mustered such an answer, but upon reflecting (over coffee), I think I can figure it out.

I have spent my professional career, and some of my academic career, surrounding myself with public defenders. It gave blueprints to my vague sense of service to others. It retrained my brain to frame all of life’s questions differently. Which is why it is so remarkable that Ketanji Brown-Jackson is our newest Supreme Court appointee.

All of the Justices on the Highest Court come from

22 | New Matter

academically prestigious backgrounds. They’ve studied philosophies of law. They’ve clerked for other Supreme Court justices and picked apart jurisprudence in every way imaginable. But only KBJ comes to us with a background of public defense. In that role, she would’ve been committed to zealous advocacy, but hopefully all defense attorneys do that. But she didn’t have the liberty to choose those for whom she zealously advocated – the indigent come to the public defender’s office as they are. The public defender must meet them there.

Public defenders must learn their client’s story from the beginning – the good, the bad, the sometimes incredibly ugly. The public defender must seek to understand, must empathize, must counsel. Public defenders learn how to be the almost constant bearers of bad news into lives already plagued and punctuated with it. Public defenders must learn how to redefine success both in courtroom outcomes and in marking progress in their clients’ lives.

To comfort and console strangers’ families on the fly. To make the stories they’ve collected come alive for people who don’t have time for them, and who probably don’t care. To disabuse others of their often-binary perceptions of the world. Public defenders perform the act of love that is standing beside a terrified fellow human upon whom judgment is being passed and know that not only is the public defender the only person in the room on

www.chescobar.org their side, but also that the way in which they’ve done their job is the only thing between that terrified human and what happens to them next. It is not for the fainthearted. And no one who has done this act of service is ever the same afterwards. They will always see the world differently; they will always frame the question in a way that centers other human beings and their oftenoverlooked lives.

It is a very big deal to those who work in public defense that Ketanji Brown-Jackson is the appointee, not just because we want to see our own succeed, but because we know that those who have done this job cannot go back to seeing the world in only black and white, distilled apart from the messiness that is the human existence.

Being able to see the world in shades of grey isn’t a bug; it’s a feature. And using that feature as a public defender is a privilege. Not just because there is value in service to others, but because as public defenders, the job is not to expedite matters through the courts. We don’t grease the wheels that churn out new convictions, but rather throw sand in them, to afford everyone the time that is warranted to process a life-altering event. That’s what getting charged with a crime is, no matter who you are. And when it’s our job to make sure things are done properly and to the best of EVERYONE in the system’s ability, we make everybody take the time to really see the person accused. We are not required to bill anyone for our time, and there’s no bottom line to answer for. We don’t compete with anyone, and we will not be hurried.

Which is not to say that every day in the PD’s office isn’t triage – it absolutely is. The job exists at the intersection of the myriad of ways society fails our citizens, especially those who have the least resources available to them.

Mental health and drug and alcohol crises often rule every day and require on-your-feet problem-solving.

But it isn't triage in a vacuum, at least, it doesn’t have to be. I realize there is a vast amount of privilege in being permitted to write this from the vantage point of a well-run, long-established public defender’s office in a wealthy county. Many counties aren't so lucky and tend to leave a trail of burnt-out, under-paid, frustrated litigators in their wake. But the public defenders I’ve met from all over this country come to the job with a view to collaboration and collectively working to improve the system and protecting the dignity of the accused.

That's what public defenders are crossing their fingers for KBJ to do. While Ketanji Brown was in college, her uncle was sentenced to life in prison for a possession of cocaine charge. It clearly colored her experience of the criminal

justice system, as evidenced by her undergraduate senior thesis submitted at Harvard in 1992: The Hand of Oppression: Plea Bargaining Processes and the Coercion of Criminal Defendants. Often, the measure of how much one loves something is how passionately one labors to make it better. And Justice Brown-Jackson spent her life doing that for the criminal justice system. When she was a member of the Sentencing Commission from 20102014, she helped reduce the guidelines on crack cocaine.

She handled appeals for years as a federal public defender in Washington, D.C., shortening and overturning sentences for indigent accused. Witnessing firsthand the irreparable damage that can be done by the system is one of the first steps in finding the massive will it takes to improve it. Humanizing the system is not a popular stance in the face of cries for “law and order,” especially when judges must withstand smears by those for whom those smears are politically advantageous, whether during election cycles or confirmation hearings.

During those hearings, that Ketanji Brown-Jackson was a Public Defender was used against her. Some told the world that public defenders’ hearts “are with the criminal defendants,” as though that's a bad thing. Well, my heart IS with the criminal defendants; my heart is with the accused. Because without the work of public defenders holding the system accountable, every one of us could become the accused. Unless the system is held to its highest standards by public defenders who care very much, it has permission to run over the least of us, and after the least of us, it will run over the rest of us.

District Attorneys in trials like to introduce themselves to the jury as the side that represents the Commonwealth of Pennsylvania. But public defenders represent the Commonwealth of Pennsylvania, too, just one at a time.

KBJ knows this; she’s lived it. May her heart always stay with the criminal defendants.

Experienced ADR Services Steve Lagoy, Esq. Mediator/ Neutral Arbitrator Video Conferencing

utbf.com | 610.692.1371 | slagoy@utbf.com New Matter | 23

CCBA Feature SCAN your environment; this could be the parking lot, the mall, your home, etc.

IDENTIFY potential safety and security hazards.

PREDICT what could happen if …

DECIDE what actions you should take if something should occur.

EXECUTE your decision, calmly and confidently!

STARTING WITH HOME SECURITY:

REFUSE TO BE A VICTIM Personal and Home Safety

By Jeffrey Stein, President, ELPS Private Detective Agency

E

ven though Chester County is home to four of the safest cities in Pennsylvania, we need to always stay vigilant. Letting your guard down only escalates the chances of you becoming a victim.

Safety experts agree the single most important factor in surviving a criminal attack is to have a personal safety strategy in place before it is needed. Preparedness for different situations will require various levels for different situations.

Regardless of where you are or what you are doing, I recommend the S.I.P.D.E. approach from my days of being an ATV safety instructor.

24 | New Matter

• Is your home a safe place?

• FACTS: – Majority of sexual assaults take place in victims’ homes – According to a U.S. Department of Justice study, if you are home when a criminal gains entry, there is a one in three chance of becoming a victim of violence.

TIPS: • Lighting inside the house and outside.

• Bright motion lights on the exterior of your property are great deterrents. Thieves do not like lights!

• Motion lights and/or lights on timers inside the house. There are several options to control lights from your cell phone or computer that are available at most home goods stores.

• Have all pathways illuminated.

• Keep your windows free of shrubs, trees and plants that can be used to conceal an intruder breaking into your house via the windows. The more visible the windows are to the street and your neighbors, the less likely a burglar will use that as an entry point into the home.

• When setting up your new high definition 75inch TV and other valuable electronics, do not advertise that to the perpetrators patrolling your neighborhood by just leaving the empty boxes outside. Instead, turn the boxes inside out, break them down into smaller pieces and put them out with the recyclables, so no one knows what you have in your house.

• Make sure your doors are secure and not an easy point of entry.

www.chescobar.org • Front / Rear Door • Garage Doors • Door leading from your garage to the inside of your house • Sliding glass doors • Pet doors • Alarms: There are numerous options for different alarms and price points. Anything is better than nothing.

• Stop your mail when you are away, hence it is not piling up in the mailbox.

• Do not advertise on social media platforms about going away, I.E., promoting to the would-be burglar that you will not be home to protect your valuables. Instead, post all your pictures, etc., once you return from your trip.

VEHICLE SECURITY: • This year there is a HUGE increase in thefts of Catalytic Converters because of the value of platinum. Vehicles parked in both residential and commercial lots are at risk of being targeted. We have seen these thefts take place at some of our client locations. One of the thefts was captured on our client’s surveillance system; we reviewed the video footage of the theft and were amazed that it only took the thieves two minutes and fifty seconds from start to finish. That includes jacking the car up, cutting out the catalytic converter, putting the car down and driving away in their getaway car with the stolen catalytic convertor.

When possible, keep your vehicles in your garage.

If in your driveway, have an alarm on the car and bright motion lights. Try to avoid leaving it parked overnight in any remote area or commercial parking lot.

• GPS – Do not program in your home and label it as such. If there is a preset setting for home, program this to your nearest police department.

For your home address, call it something else.

If your vehicle is ever stolen, there is no need to make it that simple for the thief to drive to your house, especially if he is the valet or your car is parked long term at the airport, etc.

• Always lock your car doors after entering or leaving your vehicle.

• Park in well-lighted areas.

• Have your car keys in your hand so you do not have to linger before entering your car.

• Check the interior of your vehicle for intruders before entering your car.

• If you think you are being followed, drive to a public place or a police department.

PERSONAL SAFETY: • Practice good safety habits.

- Walk in pairs.

- Park near lighted areas of the parking lots when possible.

• Safety is not always convenient.

• Stay alert and aware of your surroundings.

• Always act calm and confident like you know where you are going.

– Do not look like a tourist even when you are. Criminals prey upon the weak.

• Take a personal safety course.

• Walk close to the curb. Avoid doorways, bushes, and alleys where someone could hide.

• Do not respond to conversation from strangers on the street—continue walking.

• If you carry a purse, carry it securely between your arm and your body. Although a purse-snatcher's intent is to steal the purse, your personal safety may depend on not clinging to it.

• Personal protection equipment (there are pros and cons to each of these): – Gun – Keys – Knife – Tasers – Mace/Pepper Spray – Personal Panic Alarms • Phone Apps for Personal Safety: – bSafe - https://www.techsafety.org/bsafe/ – NOONLIGHT - www.noonlight.com/ – Lively - www.lively.com/services-apps/ lively-link/

New Matter | 25

Save Our Environment

THE FLOWAGE EASEMENT WITH A JUST COMPENSATION VALUE OF ZERO

By John R. Embick, Esquire John R. Embick, PLLC Chair of the CCBA Environmental Law Section

Article 1, Section 10 of the Pennsylvania Constitution provides as follows: No person shall, for the same offense, be twice put in jeopardy of life or limb; nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.

In the case of Miller v. Borough of Indian Lake, No. 1269 C.D. 2020 (Pa. Commw. Ct. 11/16/2021), the Commonwealth Court, in an unreported decision, was called upon to review the valuation of a flowage easement. Please note that an unreported decision of the Commonwealth Court has no precedential value, see 210 Pa. Code § 69.414.

The case is interesting to environmental lawyers because the flowage easement issue in this case arose in connection with action by the Pa. Department of Environmental Resources (PaDEP) to cause Indian Lake Borough (the owner of Indian Lake Dam) to address modifications to an earthen dam, located in the Borough of Indian Lake, Somerset County. The earthen dam created a large lake which is home to over 500 property owners, and the site is just off Route 30, near the Flight 93 National Memorial.

Basically, a flowage easement gives the grantee the right to flood the grantor’s property under certain conditions. References to flowage easements are found in Pennsylvania law and in the Commonwealth’s rules and regulations in many locations, including the Fish and Boat Code, PennDOT’s rules and regulations, and the Pennsylvania Dam Safety and Encroachments Act and companion regulations, the latter administered by PaDEP, in 25 Pa. Code Chapter 105. The definition of a flowage easement is found at 25 Pa. Code 105.1, as follows:

26 | New Matter

Flowage easements—An acquired right of use of another person’s land for water temporarily or permanently impounded by a dam or backwater from the installation, operation and maintenance of a water obstruction or encroachment.

In connection with needed modifications to the Indian Lake Dam, PaDEP and Indian Lake Borough undertook to raise the elevation of the dam, so that the lake would impound more water during precipitation events, thereby reducing the chance for dam failure (a high risk for many earthen dams – if earthen dams overtop during flooding events, then the resulting erosion can cause catastrophic dam failure) and control flooding. One of the analyses PaDEP uses to evaluate necessary modifications to dams involves a determination of the Probable Maximum Precipitation (PMP) event for the specific location of the dam.

PMP is the probable maximum depth of precipitation at a specific location for a given duration that is meteorologically possible. This is a probability exercise, based on geographical location and meteorological data, and there are a number of ways PMP can be predicted. PaDEP has published its PMP estimates and methodologies and they can be found at the Department’s website, at: www.dep.pa.gov/Business/ Water/Waterways/DamSafety/Pages/ProbableMaximum-Precipitation-Study-.aspx.

The modifications to the Indian Lake Dam involved raising the elevation of the dam and expanding the existing flowage easement from 2,290 feet (above sea level, or “ASL”) to 2,295.5 feet ASL. This does not mean that the normal elevation of the lake pool would rise to 2,295.5 feet ASL; it means that during PMP events, the lake pool elevation could lawfully rise to 2,295.5 feet without a trespass occurring. The opinion does not discuss this, but I presume that the Indian Lake Dam will be designed with drainage and spillway facilities that are designed to keep the lake pool elevation somewhere at or below 2,290 feet ASL. The plaintiffs in Indian Lake were the Millers, who owned a house on the lake, and they would not grant the Borough an expanded 5.5 foot flowage easement.

www.chescobar.org return period of 1%, is a storm that has a 1% (.01 or 1 in 100) chance of occurring in any given year. Confusingly, this percentage is also sometimes expressed as a “100year storm event.” Many people therefore think that a 100-year storm event is one that will occur only once in 100 years. This is not the case, and a 100-year storm can occur a number of times in a single year, and can occur on consecutive days in the space of a year. A rainfall frequency return period of .0004% can also be expressed as a “250,000-year storm event.”

The Millers’ home sits slightly above the 2,290 foot ASL mark. The Millers would not grant a 5.5 foot flowage easement (presumably any rise in lake pool elevation of Indian Lake above 2,290 feet ASL could flood the Miller’s house). The borough then proceeded to obtain flowage easement through eminent domain power. The Millers then filed a petition to appoint a Board of Viewers to establish the “just compensation” for the expanded 5.5 foot flowage easement. The Board of Viewers awarded no compensation. The Millers appealed to the court of common pleas and a jury trial was held.

Indian Lake Borough presented a licensed real estate broker to testify as to the fair market value of the Miller property before and after the easement was acquired.

The expert performed a comparative sales approach analysis (how comparative sales properties were determined was not explained in the decision). Based on the analysis, the Borough’s expert provided an estimate of just compensation in the amount of zero dollars. The main justification for this appraisal opinion apparently hinged on the probability that a PMP would be produced by a weather event producing 30 inches of rainfall in a 12-hour period, or 27 inches of rain over a 6-hour period. The estimated probability of this rainfall event was determined by a weather expert to be .0004% in a given year. I assume that this is the value which is known as a rainfall frequency return period, or the average frequency that a given precipitation event is equaled or exceeded. So, a precipitation event with a frequency

Commonwealth Court’s decision seems to infer that this means that the 250,000-year storm event is expected to occur only once in 250,000 years. This is not correct, however, and Pennsylvania has endured catastrophic rainfall events numerous times over the years (although not in the same place). The widely accepted maximum rainfall event in Pennsylvania occurred on July 7, 1942, in Smethport, McKean County, Pa. On that fateful July day, 34 inches of rain fell in 12 hours, with more than 28 inches of it deposited in just 3 hours – producing a flood of biblical proportions. We can say, however, that a “250,000-year storm” is rare, and the probability of such an event occurring at a specific location in any given year is very, very low.

With this in mind, the real estate appraiser in Indian Lake Borough examined a number of comparable properties on Indian Lake and opined that the fair market value of the property before and after the expanded flowage easement would be the same, because “a willing and informed buyer would not consider it a factor in arriving at the price.” Slip Op. at 4.

Interestingly, the real estate appraiser had no sales data on the comparable properties after the increase flowage easement was obtained.

It is also interesting that no apparent analysis was undertaken as to the conditions under which the Miller’s property would be flooded under conditions less than those produced by the 250,000-year storm. The Miller’s house sits at 2,290 feet ASL, so it is reasonable to assume that higher frequency storms might also produce damage by raising the lake pool elevation above 2,290 feet ASL. Further, many climatologists believe that storm events are becoming more frequent and more robust due to anthropomorphic climate change.

So, it appears that the real estate appraiser’s opinion was primarily based on his sense that future buyers would not be frightened away by the expanded flowage easement. If I owned that cottage, I might think about getting a quote for a house lifting.

New Matter | 27

Did You Ever Wonder?

What is a “War Crime”?

By Charles T. DeTulleo, Esquire Law Office of Charles T. DeTulleo

T

he national news has concentrated on the COVID-19 pandemic for over two years. But during the pandemic, and longer, there was the fear of military action that Russia may take against Ukraine. There was a buildup of Russian military forces along the border of Ukraine with political bantering back and forth as to the intention of Russia1. It would not be fair to the reader to go over the promises made by Russia that there would be no overt military action against Ukraine if they surrendered all of their nuclear weapons years ago. But on Thursday, February 24, 2022, Russian military forces entered Ukraine and commenced military attacks on that country and its citizens.

At the writing of this article it is April 11, 2022, and Russia has taken active military action against the country of Ukraine. There is a growing number of both Ukrainian military personnel and civilians of that country who have perished. Russia has also sustained a growing number of its military being killed in action. At this time, there has been One estimate is that there were 200,000 soldiers lined up at the borders of Ukraine.

1

28 | New Matter

no Declaration of War by Russia or Ukraine. The conflict continues as of the date of this article.

Under international law, a declaration of war traditionally contained three ingredients: an announcement of the intention to take violent action, an explanation why and a proposal of what could prevent it.

On Wednesday, March 16, 2022, United States President Joseph Robinette Biden Jr. said that Russian President Vladimir Vladimirovich Putin was a “War Criminal.” On Wednesday, March 23, 2022, President Biden declared that President Putin should be investigated for committing war crimes. Even prior to the statements of President Biden, the news media reported a variety of individuals who suggested that President Putin was a War Criminal and should be prosecuted for his actions.

It occurred to me that I knew a little bit about war criminals based on the Nuremberg trials after World War II (WWII). But I also thought that I had not really looked at the mechanism that war crimes tribunals took. In other words, where is the information about war crimes found? Where is the “criminal code” that defines war crimes and how does the court system work that has the jurisdiction of those crimes?

For my two best fans, you know that I use Wikipedia as part of my initial research. (See https://en.wikipedia.org/ wiki/War_crime) for a definition of war crimes: “ A war crime is a violation of the laws of war that gives rise to individual criminal responsibility for actions by

www.chescobar.org the combatants, such as intentionally killing civilians or intentionally killing prisoners of war, torture, taking hostages, unnecessarily destroying civilian property, deception by perfidy, wartime sexual violence, pillaging, the conscription of children in the military, committing genocide or ethnic cleansing, the granting of no quarter despite surrender, and flouting the legal distinctions of proportionality and military necessity.”

The above seems straight forward but, being a fan of definitions, it does leave some ambiguity concerning what some of the crimes really mean. According to other sources, there seems to be a concentration of opinion around “international law.” (See https://en.wikipedia.org/wiki/ International_law): “ International law, also known as International Ethics, public international law and law of nations, is the set of rules, norms, and standards generally recognized as binding between nations. It establishes normative guidelines and a common conceptual framework for states across a broad range of domains, including war, diplomacy, trade, and human rights. International law aims to promote the practice of stable, consistent, and organized international relations.”

So there is a body of “International Law” that has a broad array of coverage for almost all of the nations. Only part of that list contains war crimes. So what are the criminal crimes promulgated by International Law? (See https:// en.wikipedia.org/wiki/International_criminal_law): “ International criminal law (ICL) is a body of public international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. The core crimes under international law are genocide, war crimes, crimes against humanity, and the crime of aggression.”

the Rwandan genocide, leading to the establishment of a permanent International Criminal Court in 2001.” (See https://en.wikipedia.org/wiki/International_criminal_law.)

At this point it looks like we are on the right track to see how this may work if/when someone is charged with war crimes from the actions of Russia against Ukraine. It should also be clear that it is possible that Ukraine could also have committed war crimes if it fits into the same categories listed in this article. Would there be the defense that the Ukraine was merely defending itself against the Russian actions consisting of war crimes? (See https://en.wikipedia.org/ wiki/International_criminal_law#International_ Criminal_Court): “International Criminal Court: The International Criminal Court in The Hague he International Criminal Court (French: Cour Pénale T Internationale; commonly referred to as the ICC or ICCt) is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot currently exercise jurisdiction over the crime of aggression). he court’s creation perhaps constitutes the most T significant reform of international law since 1945. It gives authority to the two bodies of international law that deal with treatment of individuals: human rights and humanitarian law.”

The court was founded by treaty, Rome Statute of the International Criminal Court, on July 1, 2002. The court is officially located in The Hague, Netherlands, but the proceedings may take place anywhere where permitted. “ As of November 2019, 123 states are parties to the Statute of the Court, including all the countries of South America, nearly all of Europe, most of Oceania and roughly half of Africa. Burundi and the Philippines were member states, but later withdrew effective 27 October 2017 and 17 March 2019, respectively. A further 31 countries have signed but not ratified the Rome Statute. The law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty until they declare they do not intend to become a party to the treaty. Four signatory states-Israel, Sudan, the United States2 and Russia3 – have informed the UN Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their signature of the Statute.” (See https://en.wikipedia.org/wiki/ International_criminal_law#International_Criminal_Court):

This seems a bit more limited in scope for an accusation of the commission of a crime until you get to “...crimes against humanity...” For history buffs I know you will recall one of the main crimes charged in WWII were crimes against humanity.

Therefore, the list of crimes that can be used for charging war crimes is enlarged and expanded. What about the entity that is charged with a war crime? Is it the nation or country that is charged? What about the head of that country?

What about the Officers in Charge of the military units who are fighting that war? “ Classical international law governs the relationships, rights, and responsibilities of states. After World War II, the Charter of the International Military Tribunal and the following Nuremberg trial revolutionized international law by applying its prohibitions directly to individuals, in this case the defeated leaders of Nazi Germany, thus inventing international criminal law. After being dormant for decades, international criminal law was revived in the 1990s to address the war crimes in the Yugoslav Wars and

“ The court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party,

Continued on page 30 Ephasis added Ephasis added

2 3

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Did You Ever Wonder?

Continued from page 29 or a situation is referred to the court by the United Nations Security Council.” (See https://en.wikipedia.org/wiki/ International_criminal_law#International_Criminal_Court.)

So one of the active countries, i.e. Russia, has removed itself from the jurisdiction of the International Court. And as unlikely as it may sound, the United Nations Security Council (UNSC) was recently chaired by Russia. That representative has since been removed from the UNSC chair position4. This does not remove Russia as one of the five members of the United Nations who have veto power.

“Forty-one additional states have neither signed nor acceded to the Rome Statute. Some of them, including China and India, are critical of the Court. Ukraine5, a nonratifying signatory, has accepted the Court's jurisdiction for a period starting in 2013.” (See https://en.wikipedia.org/wiki/ International_criminal_law#International_Criminal_Court): “‘Ukraine accepts ICC jurisdiction over alleged crimes committed since 20 February 2014”.’” (See https://en.wikipedia.org/wiki/International_criminal_ law#International_Criminal_Court.)

As the above indicates, Ukraine does recognize the jurisdiction of the court. However, the court’s jurisdiction is limited. “ It is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states.”

(See https://en.wikipedia.org/wiki/International_ criminal_law#International_Criminal_Court.)

The chair of this committee is rotated between the five major signatories.

Ephasis added 6 DeTulleo Note: Note these judges do not have lifetime appointments.

4 5

30 | New Matter

It would then indicate that a state must acquire jurisdiction at this level and attempt to prosecute the alleged violating state through the International Court.

Who are the judges of the International Criminal Court? “ The judicial division of the court consists of 18 judges who are elected by the Assembly of State Parties for their qualifications, impartiality, and integrity, and serve nineyear, non-renewable terms6. The judges are responsible to ensure fair trials, render decisions, issue arrest warrants or summonses to appear, authorize victims to participate, and order witness protection measures. They elect among themselves the ICC president and two vice presidents who head the court. The Court has three Judicial Divisions who hear matters at different stages of the proceedings: Pre-Trial, Trial, and Appeals.” (See https://en.wikipedia.org/ wiki/International_criminal_law#International_ Criminal_Court). “ Pre-Trial: three judges decide if there is enough evidence for a case to go to trial, and if so, confirm the charges and commit the case to trial. They are responsible to issue arrest warrants or summonses to appeal, preserve evidence, protect suspects and witnesses, appoint counsel or other support for the defense, ensure that a person is not detained for an unreasonable period prior to trial, and safeguard information affecting national security.”

(See https://en.wikipedia.org/wiki/International_criminal_ law#International_Criminal_Court.)

The above is similar to our preliminary hearings but with expanded powers not granted to the defense in Pennsylvania. “ Trial: three judges decide if there is enough evidence to prove beyond a reasonable doubt that the accused is guilty as charged, sentence those found guilty, and pronounce the sentence in public, order reparation to victims, including restitution, compensation and rehabilitation.” (See https://en.wikipedia.org/wiki/ International_criminal_law#International_Criminal_Court.)

www.chescobar.org The above is almost identical to the powers of our trial judges. “ Appeal: five judges handle appeals filed by parties that confirm, reverse or amend a decision on guilt or innocence or on the sentence and potentially order a new trial before a different Trial Chamber. They also ensure that the conviction was not materially affected by errors or by unfairness of proceedings and that the sentence is proportionate to the crimes. The appeal judges are also empowered to confirm, reverse or amend an order for reparations, revise the final judgment of conviction or the sentence, and hear appeals on a decision on jurisdiction or admissibility, interim release decisions and interlocutory matters.” (See https://en.wikipedia.org/wiki/ International_criminal_law#International_Criminal_Court.)

Former Chester County Bar Association President, Andrea Pettine, Esq., was named the 2022-2023 President of the PA Conference of County Bar Leaders!

Congratulations!

Although the above does not appear to be a sufficient number of judges for the appeals group, the powers they hold are similar to those of the Pennsylvania courts.

However, there is only one appeals court for all cases brought to the court.

And not to be confused with the above, the United Nations created another court, The International Residual Mechanism for Criminal Tribunals. (See https://en.wikipedia.org/wiki/ International_Residual_Mechanism_for_Criminal_Tribunals): “ The International Residual Mechanism for Criminal Tribunals, also referred to as the IRMCT or the Mechanism, is an international court established by the United Nations Security Council in 2010 to perform the remaining functions of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) following the completion of those tribunals' respective mandates.”

The above court was meant to separate the activity of the actions and to finalize their adjudication and penalty imperatives so as to cut back on the personnel involved with each case. Those courts are still functioning.

In conclusion, the process of what may or may not happen concerning the actions of Russia against Ukraine is still unknown. The Ukrainian President, Volodymyr Zelenskyy, has publicly stated that he wishes to proceed with accusations of Russian soldiers for war crimes against his people. The reader may refer to multiple news sources to follow this history as it unfolds. It could be said that, for some, there will be a lifetime that takes place before we know the final outcome.

Advertise in Chester New Matter, the Official Publication of the Chester County Bar Association of Chester County, PA. New Matter focuses on national, state and local matters that affect the practice of law within Chester County, and activities of the Bar Association and its members that contribute to the welfare of Chester County communities.

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CCBA Feature

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By Brian J. Forgue, Esquire MacElree Harvey

Is My Spouse Entitled to a Piece of My Inheritance if We Divorce?

O

ne of the most common questions I am asked by a spouse in the midst of a divorce is whether spouses are entitled to receive any portion of money or property that the other spouse inherits individually. The short answer is: it depends.

The general rule in Pennsylvania is that inheritances are the separate property of the spouse that received them and are not subject to equitable distribution in divorce. Of course, there are certain exceptions to this rule based on the factual circumstances of each case. For example, one main exception is if the inheriting spouse takes a monetary inheritance and deposits that money into a joint bank account titled with their spouse. In this instance, the inherited money may be considered commingled, therefore becoming marital property, which is subject to be divided in equitable distribution.

Similarly, if a spouse inherits something other than money, like a plot of real estate or a house, and the inheriting spouse adds the non-inheriting spouse to the title as a joint owner, then the property would be considered a marital asset and subject to equitable distribution.

It is important to note that while the initial inheritance of a spouse is considered separate property, any increase in value in that inheritance during the course of the parties’ marriage is considered marital property subject to division. For example, if Spouse A inherits $100,000 from a parent’s will and during the course of the parties’ marriage, that $100,000 inheritance increases in value to $150,000 at the time Spouse A and Spouse B separate, the $50,000 increase during the parties’ marriage is considered marital property subject to equitable distribution, assuming Spouse A did not commingle the inheritance funds into any joint account during the marriage. But, the original $100,000 inherited by Spouse A before the marriage remains the separate property

32 | New Matter

of Spouse A. This example applies similarly to inherited personal and real property as well.

The best way to keep inheritances separate property is to physically keep any monetary inheritance in a separate bank account away from any joint accounts you may have with your spouse and be sure not to deposit or commingle marital funds into the account containing the inherited funds. In the case of inherited personal or real property, be sure to keep these items titled individually in your name alone or your spouse may have a claim that such items are marital property as opposed to separate property.

If you have questions or concerns about inheritances and your divorce, call me directly at 610-840-0221 or e-mail bforgue@macelree.com.

Brian J. Forgue is an attorney in MacElree Harvey’s Litigation practice group. He represents clients in a broad range of litigation matters, with an emphasis on complex commercial litigation.

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we wish to thank our Access to Justice volunteers for helping to bring justice to our community! The following attorneys have taken various types of pro bono cases through this program which serves residents in Chester County who typically would not be able to afford an attorney.

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Christin Kubacke, Esquire*

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Michael Reed, Esquire*

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Elizabeth Srinivasan, Esquire*

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Eric Strand, Esquire

Rosana Chiple, Esquire

Erin Downing, Esquire

Ryan Buchanan, Esquire*

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Sandra Snyder, Esquire*

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Susan Berryman, Esquire

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33

Initial Consult

INITIAL CONSULT

Kaitlyn R. Macaulay, Esquire Assistant District Attorney | kmacaulay@chesco.org

Where do you live?

Conshohocken, PA What was your first job?

A server at a retirement community.

What is your favorite way to spend your free time?

Discovering an awesome new happy hour spot with a friend or two.

What word best describes you? Quirky.

What is your greatest extravagance? Champagne.

Where would we find you on a Saturday afternoon?

In the middle of a deep clean or walking along the Schuylkill River walk.

34 | New Matter

What is your favorite vacation destination?

Anywhere in the mountains.

What is your favorite food? Pretty much anything my fiancé makes (he is an amazing cook!).

What would you be if you were not a lawyer?

Probably a behavioral communication researcher.

Who is the person you are most interested in meeting?

Michelle Obama.

What is your favorite website?

Instagram?

What was the last book you read?

The Lager Queen of Minnesota.

What is your favorite TV Show? Scrubs.

What goals do you still have that you have not achieved yet? Compete on Survivor.

What is a little-known fact about you? I know all the lyrics to One Week by the Barenaked Ladies.

What is something people would be surprised to hear about you?

I used to have the worst stage fright as a child.

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ur attorneys are dedicated to providing clients with superior representation and are committed to achieving the best outcomes.

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