New Matter 1st Qtr 2022

New Matter

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

1st Quarter 2022

In This Issue...

President’s Message: Wellness in the Workplace Page 4

Interviews with Newly Elected Judges Pages 14 & 16

From the Desk of the Executive Director Page 17

Employment Law Page 27

Grand Slam: 4 Workflows You Need in Your Law Practice Page 28

I love LawPay! I’m not sure why I waited so long to get it set up.

– Law Firm in Ohio

+ Member Benefit Provider

Trusted by more than 50,000 law firms, LawPay is a simple, secure solution that allows you to easily accept credit and eCheck payments online, in person, or through your favorite practice management tools.

22% increase in cash flow with online payments Vetted and approved by all 50 state bars, 70+ local and specialty bars, the ABA, and the ALA 62% of bills sent online are paid in 24 hours

YOUR FIRM LOGO HERE

Trust Payment IOLTA Deposit New Case Reference **** **** **** 9995

***

TOTAL: $1,500.00 POWERED BY

PAY ATTORNEY

Get started at lawpay.com/chescobar 866-352-4482

Data based on an average of firm accounts receivables increases using online billing solutions.

LawPay is a registered agent of Wells Fargo Bank N.A., Concord, CA, Synovus Bank, Columbus, GA., and Fifth Third Bank, N.A., Cincinnati, OH.

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 Karyn L. Seace Bill Wilson

1ST QUARTER 2022

FEATURES Blood Runs Coal: A Modern Look at a 1970 Union Murder..............6

IN EVERY ISSUE

Long Term Disability Claims................8

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

Interviews with Newly Elected Judges: Honorable Anthony T. Verwey..........14 Honorable Alita R. Rovito...................16

The Blank Page.......................................10

Supporting Workplace Mental Health.........................................23 Employment Law Update December 2021......................27

Bar Tab.......................................................15 From the Desk of the Executive Director.........................17 Did You Ever Wonder?..........................18 Save Our Environment........................24

Grand Slam: 4 Workflows You Need in Your Law Practice..................28 Commonwealth v. Harris: The Superior Court Holds that Hearsay Isn’t Enough .................30 Law Firm Cybersecurity: 3 Best Practices To Keep You Safe....................................................32

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.

View Past Issues at CNM.HoffmannPublishing.com Spread the Word #NewMatterBar #HoffPubs PUBLISHER: Hoffmann Publishing Group 2669 Shillington Road, Box #438, Sinking Spring, PA 19608 610.685.0914 x201 • hoffmannpublishing.com Graphic Designer: Jeni Rathman

For Advertising Information & Opportunities Contact:

Tracy Hoffmann

610-685-0914 x 201

tracy@hoffpubs.com

FIND US ON: New Matter | 3

President’s Message

Wellness in the Workplace

Michelle Bernardo-Rudy, Esquire President Chester County Bar Association

Being a lawyer usually involves some level of conflict, however, when you factor in what we all have going on in our personal lives – school age children in a pandemic, aging parents, college age students, illness – it only adds to our growing pile.

irst and foremost, I want to say how honored I am to be leading the Chester County Bar Association this year. Thank you to everyone for your advice and well wishes! I am excited to see what the year brings. I am also looking forward to working with the incoming board and the amazing staff that we have at the bar association.

I would like to look forward with hope and optimism.

A judge in Alabama once called me stupidly optimistic. I’ll take it. I have certainly been called worse over the years.

But I often think about that judge, looking at me from the bench as I tried to argue my client’s cause. “Counsel,” he said, “You are stupidly optimistic about your chances here today.” Isn’t that what this is all about? Don’t we take on the cause to fight for our clients no matter the odds? Don’t we, as lawyers, all possess some level of stupid optimism?

I hope so!!! Otherwise, why do we do it?

It is the beginning of January 2022 – and looking in the rear-view mirror we have all been through a lot over the past two years. A never-ending pandemic, one of the ugliest election cycles in our lifetimes, fiercely divided politics, social unrest, and the list goes on. These issues have impacted our lives in some form or another. As I know from my own experience and those of my peers – these things also impact our clients’ lives, which adds another level of challenge to our abilities to serve them.

This year my focus is at least two-fold. First, I want to focus on wellness for our members. I would like to help us focus on a little rejuvenating time for ourselves. As I mentioned at the Annual Meeting, each month we will pick a random member to receive a gift certificate to a local business. We will have gift cards to local restaurants, fitness studios/gyms, salons, and other local entertainment to help us step away and get some much needed down time. Go out to eat. Get a massage. Have a quiet cup

F

4 | New Matter

of coffee. Whatever you need to help you unwind and refresh. We have stressful jobs. You will not miss anything by taking some time to decompress. Believe me, it will all be there waiting for you when you return from meditating, or stretching, or reading. I also want to encourage the members to reach out to me and the board. Tell us what you would like to see in the Bar Association. Tell us how we are doing. This is your Bar Association, help us to provide you with the services you want.

In looking forward, it also means moving ahead. I would like to see the Bar Association come back to the table to share, with civility, our strengths with each other. As attorneys, I believe it is invaluable for us to engage with each other outside of the courtroom to help remind us that, as a society, while we can have differences of opinions, we must work to resolve disputes calmly and rationally to reach fairness. I believe that if we know the person on the other side, it not only helps us, but our clients as well. I am hoping and pushing for more in-person events.

As I am writing this in January, the Omicron variant is burning like wildfire, and we just decided to postpone the Presidents’ Dinner to March 11th, because of the rising numbers. However, while I would not be surprised if there were a couple more variants rearing their ugly heads before the summer, I think we can gather, and do it safely and hopefully everyone feels comfortable enough to join us.

I will not mandate anything, only that you come with an open mind and heart, and a willingness to help move the Chester County Bar Association forward, with hope and optimism. Especially optimism.

As a final note, I would also like to engage the community more, and do more for those of Chester County through our Foundation and Association. One way to achieve that is to help the community understand the role of Judges and Lawyers. In November, Judge Kearney of the Eastern District of Pennsylvania contacted the incoming presidents of the bar associations of the surrounding counties to inform us of the Federal Court’s initiative focusing on the Independence of the Judiciary.

We have met via Zoom and phone conferences, and I am happy to collaborate with such an amazing group of people. You will see that message in the future as the Federal Judges roll out their initiative. In addition, I am fairly certain, this is the first time all Bar Association presidents of the surrounding counties (Bucks, Chester, Delaware, and Montgomery) are women, and I think that is amazing and worth mentioning!

I look forward to the year ahead, and hope to see you around town and at our functions.

Let’s do this!

610-429-4020 | christinephennigan.com

115 Westtown Road, Suite 202, West Chester, PA Registered Representative of, and Securities and Investment Advisory services are offered through Hornor, Townsend & Kent, LLC (HTK), Registered Investment Advisor, Member FINRA/SIPC, 600 Dresher Road, Suite C1C, Horsham, PA 19044, 800-225-7637. HTK does not provide legal and tax advice. Always consult a qualified tax advisor regarding your personal tax situation and a qualified legal professional for your personal estate planning situation. Insurance licensed and Securities registered in the resident state of: Pennsylvania, as well as DE, FL, MD, MA, NJ, NC, OR, PA, VT. This is not an offer or solicitation in any state(s) where not properly licensed and/or registered. For registration or licensing information, please contact me at my office at (610) 429-4020. 3002022RB_Apr22

ATTORNEY DISCIPLINARY AND ETHICS MATTERS STATEWIDE PENNSYLVANIA MATTERS NO CHARGE FOR INITIAL CONSULTATION

Representation, consultation and expert testimony in disciplinary matters and matters involving ethical issues, bar admissions and the Rules of Professional Conduct

James C. Schwartzman, Esq.

• Judge, Court of Judicial Discipline • Former Chairman, Judicial Conduct Board of Pennsylvania • Former Chairman, Disciplinary Board of the Supreme Court of Pennsylvania • Former Chairman, Continuing Legal Education Board of the Supreme Court of Pennsylvania • Former Chairman, Supreme Court of Pennsylvania Interest on Lawyers Trust Account Board • Former Federal Prosecutor • Selected by his peers as one of the top 100 Super Lawyers in PA and the top 100 Super Lawyers in Philadelphia • Named by his peers as Best Lawyers in America 2022 and 2015 Philadelphia “Lawyer of the Year” Ethics and Professional Responsibility Law and Legal Malpractice Law 1500 Market Street, East Tower, Suite 1800 • Philadelphia, PA 19102 (215) 751-2863

New Matter | 5

CCBA Feature

BLOOD RUNS COAL:

A Modern Look at a 1970 Union Murder

Mark A. Bradley; W.W. Norton Fall, 2020

By Mark Ashton, Esq. Fox Rothschild, LLD.

W

e live in contentious times. Many would say these are unprecedented times where there are entirely divergent views of America’s future direction.

History says otherwise. Our country experienced widespread violence in the 1840s over whether Catholic immigration would ruin America. We saw a million killed or wounded over whether eleven states could secede and retain slavery as an institution. In 1968 the murder of Martin Luther King triggered major riots in six American cities while, anger over the draft and our involvement in Vietnam prompted hundreds of protests culminating in riots in Chicago during the Democratic nominating convention. Almost 1,000 were injured.

While decidedly more violent, the battles of 1968 are not much different than those of today. Half of us embrace the way things were when America was “great.”

The other half suggest that things are far from “great” and change is required.

6 | New Matter

Attorney Mark Bradley’s history of the murders of Joseph Yablonsky and his family on December 31, 1969 reminds us how badly people react when they perceive themselves as threatened. The United Mine Workers were organized in 1890. Like other elements of organized labor, they experienced a rocky start until 1920 when John Lewis took over and made the miners a central element of the Congress of Industrial Organizations (CIO). Lewis took the miners out of the CIO in 1942 and headed the union until 1960. He was revered by the humble men for whom he fought and when he told them that Tony Boyle was a worthy successor, they never questioned that endorsement.

Although he came from a mining family, Boyle was an odd choice. He never was really in touch with the rank and file and some miners thought he ignored their economic and safety needs. But others accepted Boyle’s heavy-handed control of the union. After all, he was John Lewis’ guy.

Unions in the 1960s were more autocratic than democratic. Leaders like Boyle could hand pick their boards and decide whether a member did or did not get

CCBA Feature his pension. In the case of the United Mine Workers, millions of dollars were on deposit at the unioncontrolled National Bank of Washington. Those deposits paid no interest to the union. Pensioners were paid $1-$2 a days after years in the mines. It didn’t make a big difference because black lung and related diseases meant the pensions were paid for just a few years before the miner died.

In November 1968 the fans that carried explosive methane gas out of the Consolidated Coal Mine in Farmington, West Virginia stopped working. This was not a surprise, as the mine’s own records showed it had spent $1 a month on mine safety training in 1968. 78 miners suffocated to death 600 feet below ground. The mine operators sent a plane to Washington to bring union head Tony Boyle to the mine. With hundreds of union family members waiting to hear their leader, Boyle told them that Consolidated had a good safety record and that these things happen to people who work in the mines.

Joseph “Jock” Yablonsky was a long-time union operative who questioned Boyle’s leadership yet kept his views to himself. But watching Boyle excuse the employer for 78 avoidable deaths was too much. He had abided rampant corruption and watched previous challenges to Boyle’s authority brutally punished. This time, however, Boyle and his coterie had treated avoidable death as inevitable.

When Yablonsky announced he would run against Boyle to head the union, nearly everyone in the union hierarchy was incredulous. Yablonsky knew his chances were slim and his life was in jeopardy. Boyle had support of union locals with a history of addressing union problems with a miner’s weapon of choice; dynamite.

What Yablonsky would not have expected was that Boyle would knowingly contract for him to be murdered.

Perhaps even more bizarre was the fact that the murder was effected weeks after Boyle had decisively won reelection with a 64% majority.

The story of the union, the election challenge to Boyle, the murder and the trials is told crisply by the author in 240 pages. The murder, which included the gunshot death of Yablonsky, his wife and daughter in their Clarksville, Pennsylvania farmhouse on New Year’s Eve 1970 is a decidedly blue-collar affair. The theme is common. Well-off people in power identify and pay people on the margins of life to execute the Yablonsky family as they sleep in their beds. The union leaders involved act because they view a threat to Tony Boyle as a

www.chescobar.org threat to them, to the union way of life and to democracy itself. Sound familiar?

The identification of the actual killers is almost too simple. They stalked Yablonsky for months in ways that were both rudimentary and ineffective. They searched for their prey in a town of 300 people and made no effort to hide their presence from Yablonsky’s neighbors.

Confronted with hard evidence of their involvement, the killers turned on each other.

The murders came to light five days after they occurred when Yablonsky’s son in Washington could not reach his parents and sister. Recognizing that there was likely a conspiracy, local and state officials turned to the FBI to assist the State Police and to Philadelphia’s star assistant district attorney Richard Sprague, to secure convictions. Sprague was lucky in the sense that the murders were easily traced, and the defendant was easy to flip. But the second step was tracing the money, first to a union local in Tennessee that was happy to provide their union leader with revenge for Yablonsky’s challenge and then to union headquarters in Washington and Boyle himself. Along the way Sprague tried the killers in Greene County, southwest of Pittsburgh, the union local conspirators in Erie and finally Tony Boyle. Boyle’s murder conviction was reversed by the Pennsylvania Supreme Court and a second trial ordered to be held in Media, Pennsylvania in 1978. That trial brought together three legends. Sprague, defense attorney A. Charles Peruto and President Judge Francis Catania. Boyle was convicted a second time in a trial where Peruto promised evidence he later acknowledged to the jury he could not produce.

The story is a page turner, deftly told by an experienced attorney. As a person who came of age in the late 1960s and watched American cities burn between 1967 and 1970, Blood Runs Coal reminds this writer that today’s political polarization has real parallels with the turbulence of the 1960s. Boyle and his cohorts professed that only they could save the union from the coal companies, other unions and “communists” like Jock Yablonsky. In the end, Yablonsky and his family were martyred for the sake of these demonstrably false narratives. Then is not now, but as Antonio said in the Tempest, “What’s past is prologue; what to come is yours and my discharge.” In a word, there is merit in study of the past, but the future is in our hands.

New Matter | 7

CCBA Feature

By Jamie Hall, Esq. Law Office of Jamie R. Hall

Long Term Disability Claims

A

t some point every attorney receives a client inquiry regarding a long term disability claim, regardless of whether the attorney offers representation in this field. These claims often occur in concert with other legal issues, including personal injury, bankruptcy, and divorce. What follows is a primer, basic information for reference when receiving an initial client call regarding his or her long term disability claim.

What is a long term disability claim?

A long term disability (LTD) claim is a private claim for wage replacement benefits as a result of a disabling condition. LTD coverage is obtained through an insurance company, and is normally offered by one’s employer. These claims are separate and distinct from Social Security disability claims, with different requirements, benefits, and processes. LTD claims are governed by the relevant insurance policy, as well as by federal law under ERISA. ERISA is the Employee Retirement Income Security Act, which sets forth the rules of the game in these claims, largely to the benefit of the insurer and to the detriment of the individual claimant. A small number of LTD claims travel outside of ERISA.

How is disability defined?

Although policies can vary, insurers usually consider whether claimants can perform their pre-disability work on a full time basis. This includes both the physical capacity to perform (including the requisite standing, handling, lifting and carrying), and the cognitive or behavioral capacity to perform (including to maintain 8 | New Matter

focus and attention through the course of an eight-hour workday).

In many policies, the definition of disability changes after approximately 24 months, shifting from considering claimants’ own occupations to considering any occupation. After this shift, insurers will consider whether claimants can do any work that pays approximately 80 percent or more of their pre-disability income. Many claims are challenged by the insurer at this transition point, especially where the claimant’s past work was in a lower paying position with less income protection, or where the past work was unusually physical (such as many nursing positions).

What is the decision-making process?

Generally, there are up to three stages to the decisionmaking process. An initial application is made to the insurer. If this is denied, the claimant is provided one or two in-house appeals, also decided by the insurer. Only once these in-house appeals are denied and exhausted can the claimant proceed to federal court.

Perhaps the most important limitation to these claims under ERISA is that, with very limited exceptions, the federal court’s review is restricted to the record as it existed at the time of the insurer’s final decision.

Although a claimant may supplement their record at will during the initial applications and in-house appeals, the record essentially closes when the final appeal to the insurer is denied.

Claimants often assume that they do not need counsel until they have exhausted their in-house appeals.

CCBA Feature

www.chescobar.org

Unfortunately, a claimant who fails to seek representation before they have exhausted their in-house appeals will have significant difficulty obtaining representation (and even more difficulty prevailing before the federal court).

In such a scenario, counsel’s arguments will be bound by the limited support of the factual record developed by the pro se claimant, and contested by a factual record artfully developed by the insurer.

M&N Limit: Claims based upon non-organic behavioral or psychological conditions, which cannot be proven through objective testing, are normally limited to 24 months of coverage. This would apply to anxiety, depression, or bipolar conditions. Insurers may attempt to wrongfully place disability from TBI, multiple sclerosis, or other organic neurological complaints into this category to limit the duration of coverage.

Once in federal court, the claimant is not only limited to the record as it existed at the time of the insurer’s final decision, but is also tasked with a challenging standard of review. In the vast majority of claims, the court will not perform a de novo review of the claimant’s disability allegations, but instead will review for an abuse of discretion. As such, claimants are well advised to take measures to obtain approval without resorting to the federal courts whenever possible.

Settlement Offers: These should be approached cautiously by claimants who are in payment status, as the offers often greatly favor the insurer. Nevertheless, consideration may be appropriate in some circumstances, such if a person may return to work or has a significant risk of mortality. In these circumstances, counsel may be able to obtain a limited increase in the amount proposed.

What is at issue?

This varies by the policy, but usually includes wage replacement payments of between 50 and 66 percent of pre-disability income. Importantly, this coverage will be offset, or reduced, by an award of Social Security Disability benefits for both the claimant and his or her minor children. The vast majority of polices continue to cover loss of earnings through retirement age, but a small proportion of blue collar polices are exhausted after six months to two years of coverage.

Covid-19 Claims: These claims are challenging, but are gaining traction as we learn more about the performance issues suffered by long haulers.

Isn’t this just like a Social Security Disability claim?

In many circumstances, an employer will continue, extend access to health insurance to former employees for at least the start of an approved long term disability claim.

No. Although there is some crossover in the underlying theories, LTD claims require a more sophisticated analysis and knowledge of the unique rules posed by ERISA. Insurers have more and higher quality tools at their disposal to develop a negative record. LTD claims are often more valuable than SSDI claims, and are ‘one-shot’ opportunities: unlike SSDI, there is no ‘second claim’ if LTD appeals are denied and exhausted. LTD claims also allow more in-depth analysis of vocational data, and reward a strong understanding of the underlying medical issues.

What are typical challenges in these claims?

What about my office’s coverage?

Pro Se Appeals: Upon issuance of a denial, insurers will often include a sheet of lined paper and offer for the claimant to simply write their appeal. These appeals, which equate to a claimant statement without objective support, rarely have any impact other than to exhaust one of the two in-house appeals permitted under the policy.

Considering the above, I suggest that you also assess your current coverage. Important information to understand includes your policy’s wage replacement amount, any offsets against this amount due to SSDI approval, allowances for part time work, the policy’s own occupation period, and the duration of coverage.

Timeline for Appeal: Generally only 180 days are permitted to appeal a denial. This is a small window to obtain and review the insurer’s substantial claim file, update the medical record, obtain medical and vocational statements of support, and generally perfect the appeal.

Jamie Hall is a long term disability and Social Security Disability lawyer. Jamie’s office is located in Kennett Square, and he can be reached at 610-570-5253 or jhall@jrhlegal.com

Pre-Existing Conditions: For newer employees, a preexisting condition may be excluded from consideration in the disability claim. Issues from new conditions would still be considered by the insurer, however.

New Matter | 9

The Blank Page

The Business of Football

By Mark Blank, Jr., Esquire

O

k, the football season has just ended. Some of you may already be suffering from football depression, which usually comes after the season finales. Well, let us reflect with a song: “ Every fall when leaves turn brown, Friday evening rolls around.

I sit down in my TV chair, And my face assumes a TV stare.

It’s football time.

It’s highlight films of last Week’s games, commercials starring big league names.

Analyses of every play, Picking the winners for Saturday.

Interviews with the stars; Interviews with the waterboy; Interviews with the fullback’s grandmother.

Now, on Saturday it’s do or die, for dear old Siwash We’ll defy, the enemy to dim our stars, who have their eyes on brand new cars.

Thank God for scholarships; Thank God for alumni; Thank God for the school of education.

Now, my poor wife has got it rough; cause Saturday wouldn’t be enough, but Sunday’s a tale She knows too well, a triple-header in the NFL. She says I don’t listen to her.

She says she’s going to apply for a marital dissolution.

Sounded to me like a new formation.

10 | New Matter

ow, halftime shows star N Pretty girls, with little short skirts and long blonde curls, but who’s got time For majorettes, when NBC Has got the Jets.

And I just can’t afford two sets. ut don’t fret Jets; with B 400,000 for Namath and 200,000 for Hewart [who the hell is he?], you can spend them to death. he terminology is giving me fits T It’s red-dogs, cornerbacks, Double safety blitz; Jitterbugging, automatic submarine zip, Zig-out, down-and-out, Nickelback hip.

Just listen to the huddle.

Hear the quarterback say: Tucker, just take that ball and run for your life. It’s your turn to be on instant replay. ell, as I sat there sipping beer, a shoe came whistling by W my ear. A bullet passed; I mean, it went right through the TV screen. y wife was standing there laughing hysterically.

M And I said: “Don’t worry dear, I’ll get it fixed by next Friday”.”

Chad Mitchell Trio, Talking Football

www.chescobar.org In NCAA football, the season finale is no less than 43 Bowl Games and the BCS Bowl. In the NFL, it is the Pro Bowl and, most of all, the Super Bowl. I can remember when there were four (maybe six) college bowl games: the Rose Bowl, the Cotton Bowl, the Sugar Bowl and the Orange Bowl. Maybe you could also throw in the Gator Bowl and the Liberty Bowl. (My parents always reflected on when there was but one Bowl, the Rose.) And the NFL Championship game was played generally on the first Sunday following New Year’s Day, not the middle of February.

Let’s face it. American football (between college and professional) is a trillion dollar industry. Professional football players and coaches have historically been well paid; of course, not like today. As for the NCAA football players, their compensation was glory and college expenses, and maybe a few other perks.

Now let us focus on the law. Is professional football a business? No, it is a big, big, big (maybe ten more bigs would suffice) business. Has it always been a business?

Yes, but from the beginning, maybe just a business, not an enormous one. So let’s take a look at some legal history.

The first SCOTUS case involving professional sports was Federal Baseball Club vs. National League, 259 U.S. 200 (1922). There the Court held that baseball is a business but, nevertheless, was not engaged in interstate commerce, so as not to be subject to the Sherman Antitrust Act. Justice Oliver Wendell Holmes: “The business is giving exhibitions of baseball, which are truly state affairs . . . ” Id. 208.

The proposition stated in Federal Baseball Club was upheld in Toolson vs. New York Yankees, 346 U.S. 356 (1953) by a 7-2 margin that the antitrust exemption applies to baseball. (More about baseball, perhaps at the appropriate time.)

Now, let us talk football. In Radovich vs. National Football League, 352 U.S. 445 (1957), the Court ruled that professional football, as distinguished from baseball, not only is a business, but is, unlike baseball, subject to antitrust laws. Per Justice Clark; Justices Frankfurter, Harlan, and Brennan dissented.

Now, let us turn to NCAA football. Is it a business? Is it subject to antitrust laws; well, salaries of head coaches (not including smaller colleges, Ivy League, etc.) range from $800,000 to $11,000,000 per year. Call this a recreational sport, only a part of the college curriculum? I don’t think so. But it can be. A few years ago, I attended Columbia vs.

Harvard at Harvard Stadium. It was fun. A money maker?

Not bloody likely. Perhaps the annual Harvard-Yale game

(America’s oldest football rivalry), which is always a sellout, may generate some revenue.

But let us go back a few decades. In NCAA vs. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984), the SCOTUS held that an NCAA television plan was a violation of Section 1 of the Sherman Act. The lawsuit in Board of Regents was commenced in 1981.

But let’s go back even further. Detroit Football Company vs. Robinson, 186 F.Supp. 933 (E.D.La.1960) involved a “contract jumping” suit. There, Judge J. Skelly Wright began his opinion: “This case is but another round in the sordid fight for football players, a fight which begins before these athletes enter college and follows them through their professional careers [emphasis mine]. It is a fight characterized by deception, double dealing, campus jumping, secret alumni subsidization, semiprofessionalism and professionalism. It is a fight which has produced as a part of its harvest this current rash of contract jumping suits. It is a fight that so conditions the minds and hearts of the athletes that one day they can agree to play football for a stated amount for one group only to repudiate that agreement the following day or whenever a better offer comes along. So it was with.

Johnny Robinson” Id. 934. (Johnny Robinson had played football at LSU).

Then in 1961 New York Football Giants, Inc. vs. Los Angeles Chargers Football Club, Inc. and Charles Flowers, 291 F.2d 471 (5th Cir. 1961) was a suit in equity for specific performance. (Flowers played football for Ole Miss.)

Chief Judge Tuttle (one of the Fifth Circuit Four) began his opinion by quoting Judge Wright from Robinson.

The District Court denied relief based on the clean hands doctrine. The Court of Appeals affirmed.

Now, the grand finale. In Alston vs. National Collegiate Athletic Association, 594 U.S.___ (2021), the Court upheld a District Court ruling that the NCAA cannot enforce certain rules limiting education related benefits (such as computers and graduate school scholarships) that colleges offer athletes. The decision of the Court was unanimous, with Justice Kavanaugh concurring.

The plaintiffs brought suit alleging that the NCAA and certain of its member colleges violated the policy of the Sherman Act by agreeing to restrict the compensation that colleges and universities may offer student athletes who play for teams. The focus was on education benefits.

However, as Justice Kavanaugh observed in his concurring opinion: “. . . This case is only a narrow subject Continued on page 12 New Matter | 11

The Blank Page Continued from page 11

of the NCAA’s compensation rules – namely, the rules restricting the education-related benefits that student athletes may receive, such as post-eligibility scholarships at graduate or vocational schools. The rest of the NCAA’s compensation rules are not at issue . . . and therefore remain on the books. These remaining compensation rules generally restrict student athletes from receiving compensation or benefits from their colleges for playing sports. And these rules have historically restricted student athletes from endorsement deals and the like.”

(Kavanaugh, J., concurring, 594 U.S.___. Emphasis in the original) That college football is subject to Sherman Antitrust Laws and has cases that land in the federal courts (including the Supreme), coupled with (1) the salaries of coaching and administrative staff; (2) the revenue generated to universities; (3) television; (4) the multiples of college bowls sponsored by large corporations; and (5) the NFL Draft, is more than sufficient to characterize NCAA football, as the NFL, as a business. Big business?

Clearly, the NFL; but college, you be the judge and issue your ruling on the subject.

C H E S T E R C O U N T Y B A R A S S O C I AT I O N

Upcoming Events

For more details on all upcoming meetings and events, go to: www.chescobar.org/events

March March 11th................... Presidents’ Dinner; Aronimink Golf Club, Newtown Square, PA

April

April 7th........................ Spring Bench Bar; The Desmond, Malvern, PA

May

May 12th...................... Key Gala; Penn Oaks Golf Club, West Chester, PA

2022 CCBA Presidents’ Dinner

RESCHEDULED

FRIDAY, MARCH 11, 2022 Cocktails 6:30 p.m. | Dinner 7:30 p.m.

Aronimink Golf Club, 3600 St. David’s Road Newtown Square, PA

Honoring our 2020 & our 2021 Presidents, Samuel Cortes, Esq. (2020) and John Fiorillo, Esq. (2021) Black Tie Optional | Spouse or Guest Welcome 12 | New Matter

.org We're delivering PA's best CLE experience.

Live, interactive webcasts An extensive library of On-Demand CLE with new courses added daily Press books — renowned authors in every area of practice

PBI.ORG | 800-932-4637 New Matter | 13

CCBA Feature

INTERVIEW WITH NEWLY ELECTED JUDGE:

Honorable Anthony T. Verwey PERSONAL:

PROFESSIONAL:

Are you married? Yes, to Kathy, who many of you know. We have been married for over 32 years and have one son, Matthew.

Why did you decide to become a judge? To serve the

How did you meet your spouse? We met in law school. Kathy

How did you find the campaign process? I believe it is far

worked the front desk at the law library, and we first met when I convinced her to allow me to bring a pizza into the library for my study group.

more challenging than most people think, especially in a contested countywide election.

Do you have any hobbies? I very much enjoy cooking, but I also like to travel with my family.

What made you decide to go to law school? My interest in becoming an attorney started with watching television shows like Owen Marshall, Counselor at Law, when I was young. A local attorney in Monroe County solidified my interest. Kennard Lewis and his family were frequent customers at the restaurant where my mom was a waitress. He was a prominent attorney and helped her (and others) with legal matters and never asked to be paid. I saw in him someone who cared, but also had the ability to make a difference and that motivated me to pursue a law degree.

When did you first come to Chester County? We moved to William Henry Apartments, in East Whiteland Township, in 1990.

Why did you choose Chester County? The firm I was working for was considering opening an office in West Chester, so we moved to Chester County. Ultimately, the office wasn’t opened, and I moved on to the Office of Disciplinary Counsel, but we loved Chester County and thought it was a great place to raise a family.

14 | New Matter

citizens of Chester County.

What types of cases will you be presiding over?

Family and Orphans’ Court matters.

Is there anything that a lawyer coming to your court room should be aware of, in advance, either in terms of formality, dress code, or civility? I believe that both formality and professional dress are appropriate in the courtroom. Civility is important to the administration of justice and should be the default.

As a “Newbie” to the bench, what do you hope to learn from other judges on the bench? I am thankful for the fact that my colleagues on the bench are extremely knowledgeable and supportive. I have already learned a great deal and there is a wealth of experience to call upon.

What strengths do you bring to the bench?

Patience and the ability to listen.

CCBA Bar Tab

www.chescobar.org

CCBA

BAR TAB

New personal and professional updates

GAWTHROP GREENWOOD attorney ROBERT C. JEFFERSON, IV has been named to the Board of Trustees for People’s Light.

One of the largest professional theatres in Pennsylvania, People’s Light is a not-for-profit theatre located in Malvern that forges cultural and civic connections throughout the region.

GAWTHROP GREENWOOD attorney and partner STACEY L. FULLER has been named Vice President of the Board of Directors for the West Chester Area Education Foundation.

The Foundation is an independent, non-profit organization with a mission to supplement creative, meaningful, real-world experiences for students in the West Chester Area School District.

MACELREE HARVEY TO MERGE WITH ROVITO LAW join our firm effective December 30, 2021.

The law firm of BUCKLEY, BRION, MCGUIRE & MORRIS LLP is pleased to announce that WARREN E. KAMPF has joined the firm as a partner. Mr. Kampf is an accomplished attorney with twentyfive years of litigation experience, and more than twenty years of local and state government experience. He has handled a wide variety of litigation matters during his career, conducted dozens of jury trials, hundreds of bench trials, and many appellate arguments, mediations and arbitrations. Mr. Kampf also has significant state and local government experience, having served as a member of the Pennsylvania House of Representatives for eight years, a township supervisor for eight years and as chief lobbyist for Pennsylvania’s largest healthcare trade association. Mr. Kampf is a graduate of Yale University and Emory University School of Law. Mr. Kampf will focus his practice on Commercial Litigation, Appellate Litigation, Healthcare, Constitutional Law, Administrative and Regulatory Law, Election and Lobbying Law. He is admitted to practice in Pennsylvania, and also the federal courts of the Middle and Eastern Districts of Pennsylvania.

We are pleased to announce that the Chester County based law firm, Rovito Law, will

With the upcoming merger we welcome Attorney Michael Rovito. Michael has experience in the areas of custody, support, alimony, property division, and divorce, and will be part of our West Chester office.

Founding Partner of Rovito Law and winner of November 2021 election, Attorney Alita Rovito, will be sworn in as Judge on the Chester County Court of Common Pleas in January 2022.

Alita Rovito was a Chester County Family Court Master for 15 years before founding Rovito Law. She also served as a mediator, arbitrator and court appointed parent coordinator.

Prior to joining Rovito Law, Michael attended and graduated from the Widener University School of Law located in Harrisburg, Pennsylvania, which is now known as Widener University Commonwealth Law School. Michael’s prior experience also includes clerking for the Office of a County Solicitor, and as a summer clerk to a Judge sitting on the Court of Common Pleas. He recently assumed the position of Co-Chair of the CCBA (Chester County Bar Association) Family Law Section.

LAMB MCERLANE ANNOUNCES SECOND MERGER IN TWO YEARS Lamb McErlane, a premier regional law firm based in West Chester, and McMichael, Heiney & Sebastian (MHS), a wellestablished law firm in Oxford, have agreed to merge.

The merger, which took effect at the start of the new year, brings together Lamb McErlane’s 42 attorneys with MHS’s two attorneys in Oxford. The combined firm will operate under the name of Lamb McErlane and will have 44 attorneys with offices in West Chester, Philadelphia, Newtown Square, and Oxford.

Lamb McErlane has been an industry leader in the region for more than 50 years.

The merger expands Lamb McErlane’s footprint, as well as the firm’s Business, Municipal and Zoning, Real Estate, and Trusts and Estates practices. Winifred “Winnie” Moran Sebastian will join Lamb McErlane as a Partner and Sam McMichael as Of Counsel in the Oxford location.

MHS approached Lamb McErlane after working with several Lamb

McErlane attorneys and recognizing how the two firms shared a similar culture and vision.

“We’re very excited to accomplish yet another strategic merger. Sam and Winnie have a longstanding successful practice, especially in the municipal field, and we’re happy to now have them under the Lamb McErlane umbrella,” remarked Joel L. Frank, Chairman and Managing Partner of Lamb McErlane. “The addition of this office gives us an immediate presence in the important southern part of Chester County and affords us the opportunity to provide our wide array of services to those companies and individuals located there.”

Lamb McErlane has built a reputation on delivering the highest caliber of legal service in an environment focused on personal attention and results. Bringing the sophistication and experience equated with large, metropolitan firms, Lamb McErlane’s highly efficient, goal-oriented, and focused approach produces results that clients deserve.

Do you have any exciting personal or professional news you would like to share?

Email Rachel Prince at rprince@chescobar.org to have it included in our next publication of New Matter!

New Matter | 15

CCBA Feature

INTERVIEW WITH NEWLY ELECTED JUDGE:

Honorable Alita R. Rovito PERSONAL:

PROFESSIONAL:

Are you married? Yes, I have been married for 34 years to Kevin Lawrence and we have two adult daughters; Aggie who is an occupational therapist and Mary who is a lawyer at MacElree Harvey. My nephew, Michael, is our de facto son and he is also a lawyer at MacElree Harvey.

Why did you decide to become a judge? After being in

How did you meet your spouse? We met at Penn State, in

question? I found it both exhausting and exciting. I really enjoyed traveling the county, talking to and learning what is important to the citizens, but we have a big county and lots of people.

State College, although we grew up within 10 miles of each other.

Do you have any hobbies? Yes, I like to cook and read. We have a houseboat on the Sassafras River in Maryland, and I love being on the water.

What made you decide to go to law school? My parents believed in education and “directed” us all to professions. My mom was a master degreed art teacher, and my dad was a lawyer in Shamokin, PA where I grew up. My dad had a law office and when we talked about my career plans, he said, “If that idiot down the hall can be a lawyer, so can you.” Not a resounding endorsement but he was right, I was meant to be a lawyer.

When did you first come to Chester County? Kevin and I lived in Phoenixville, the summer of 1987, when I was studying for the bar exam. I interviewed for the DA’s office on December 28, 1987 and started there at the end of February 1988. We bought a house in West Goshen that April and never looked back.

Why did you choose Chester County? When I graduated law school, I got a job as in-house General Counsel for Cottman Transmission. I learned a lot about transmissions and the business of franchising, but I knew that was not what I wanted to do, I wanted to work in public service and I wanted to be in a courtroom. I applied to the Chester County PD’s office and DA’s office. I got the call from the DA’s office first offering me an interview on December 28, 1987. As I drove into West Chester, I drove past St. Agnes Cemetery and St. Agnes Church. My mother and sister were killed in an auto accident just shy of my 15th birthday. My mother’s name was Agnes. My second interview with the DA’s office was January 21st, the Feast Day of St. Agnes. I think my mom was telling me that Chester County was where I was meant to be, and we have made it our home.

16 | New Matter

private practice for over 10 years, I wanted to return to public service and give back to Chester County as it had given me so much.

How did you find the campaign process? Is that a serious

What are you most looking forward to, once you are on the bench of the Court of Common Pleas? Making a difference in people’s lives. Helping people see the forest through trees.

What types of cases will you be presiding over?

Family and Criminal

Is there anything that a lawyer coming to your court room should be aware of, in advance, either in terms of formality, dress code, or civility? Be civil, polite, and respectful because there is no reason not to be and you certainly cannot expect people to treat you that way if you don’t treat them that way. Be prepared.

As a “Newbie” to the bench, what do you hope to learn from other judges on the bench? So much…I have already learned so much from them. Everyone has been supportive and helpful. I feel very lucky.

What strengths do you bring to the bench?

I have been a lawyer in Chester County for 34 years, so I care about the County and its Citizens. I am open-minded, fair, and compassionate. I work hard and want to do a good job.

From the Desk of the Executive Director

www.chescobar.org

Happy 2022!

I hope this New Year has treated you kindly.

F

or those who don’t know me, I have had the privilege of being the Executive Director of the Chester County Bar Association for a little over two years.

We have a lot of exciting things going on at the Bar this year. For starters we had two new Staff Members join us on January 3rd. Rachel Prince is our new Communications, Events, and Marketing Manager, so she will be your go-to person whenever you have questions about our social events and activities. Meredith Barr is taking on a new role as the CCBA Receptionist, so many of you will have the chance to chat with her when you call or come into our office, as she will be the main driver of the Welcome Wagon from now on. Rachel and Meredith will be joining myself, Genya, Tyler, and Lauren as we seek to continue to deliver excellent services to our members and the people of Chester County. Please don’t hesitate to reach out to any of us if we can be of assistance to you or your firm in any way.

This year is going to be as similar to pre-pandemic years as we can safely make it, as I sit here and keep my fingers crossed that by the time you are reading these words, the Omicron Wave will have declined dramatically.

Please mark your calendars now for all of our Key Events to make sure you don’t miss out on any of the comradery this year. The Presidents’ Dinner honoring our 2020 and 2021 Presidents is now being held the evening of Friday, March 11th. Spring Bench Bar returns to the Desmond for a full day of in-person CLEs and activities on Thursday, April 7th. Our Foundation Key Gala will be held on Thursday, May 12th at Penn Oaks. Bar Sail is headed back to Saint Michael’s this year on Thursday, June 16th. The Fall Bench Bar will be held in Alexandria, Virginia this year (which believe it or not is less than three hours away if you don’t hit too much traffic). We will be having one of our best Bench Bars yet from September 29th to October 1st. Finally, the Annual Meeting will be held in the Historic Courthouse on Thursday, December 1st.

There will be a myriad of happy hours, ceremonies, and receptions in addition to these dates, but I wanted to make sure you had the main events locked in now. You

Chester County Bar Association Executive Director Matt Holliday

will of course be receiving notice of any events that we put on this year, large or small.

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 12 months.

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.

~ Save the Date ~

2022 BAR SAIL

St. Michaels, MD | June 16, 2022

St. Michael’s Harbour Inn, Marina & Spa

New Matter | 17

Did You Ever Wonder?

What does

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

LGBTQUIA+ mean?

As I wrote this article I wondered how to approach the sometimes sensitive subject of LGBTQIA+, since it can be a “hot topic” these days. So I will do what a good attorney should do, provide a disclaimer: The focus of this article is on the importance of clearly defining a protected class when drafting legislation and ensuring equitable application of the law. I do not wish to cause ANYONE any harm or to disparage anyone or hurt anyone. My goal is to provide a mechanism for a conversation about the meaning of certain words and abbreviations so that any readers of the article may have a better understanding of why definitions are important.

In looking at the use of words you should remember that there are some absolute words such as always, never, shall, shall not, not permitted, not allowed and the everpopular parental word of “no”1. The dictionaries of the world have become mere temporary listings of words in current use. That also includes the editing of previously defined words to have more current meanings. There is no doubt in my mind that more than one reader of this article will not know the current definition of a particular word that does not mean what they think it currently means. Considering words and definitions in the context of the law, when you add the complexities of the law as it changes, there is the ever-present danger of not knowing how a court will decide a case of great importance and that a decision could be based on disagreement over the definition of a word.

Disagreement can arise even with respect to words for which the definition seems straightforward. By way of example, consider the use of the word “shall” in the following cases: Commonwealth v. Kirkner, 569 Pa. 499, 805 A.2d 514, 2002: “Shall is mandatory.” Citing Oberneder v.

1

Mom, Dad, may I borrow the car? NO!

18 | New Matter

Link Computer Corp., 548 Pa. 201, 696 A.2d 148, 150, 1997. In concurring opinion of Kirkner the court also cites to Commonwealth v. Baker, 547 Pa. 214, 690 A.2d 164, 167, 1997: “Shall is not always regarded as mandatory, but has also been interpreted to be merely directory.” Commonwealth v. Mazurek, 717 A.2d 23 (Pa. Cmwlth., 1998) “...shall is mandatory under the Driver License Compact.” Boots v. Commonwealth, 736 A.2d 64, 1999, appeal denied 564 Pa. 722, 766 A.2d 1242, 1999; documents not from the licensing authority; also points to the “shall” as being mandatory (citing Mazurek); See also: IN THE INTEREST OF: A.B.; APPEAL OF: A.B., _____ A.2d _____, December 24, 2009. “Moreover, when a statute contains the word “shall,” it is “by definition mandatory, and is generally applied as such.” Chanceford Aviation Properties L.L.P. v. Chanceford Tp. Bd. of Supervisors, 592 Pa. 100, 108, 923 A.2d 1099, 1104 (2007). The Pennsylvania Supreme Court “has recognized that the term ‘shall’ is mandatory for purposes of statutory construction when a statute is unambiguous.” “Under the “shall” rule, Section 9123(a) favors expungement whenever a juvenile offender has met the requirements of any subsection under the statute.

18 Pa.C.S.A. § 9123(a).” Commonwealth v. Hess, 570 Pa. 610, 810 A.2d 1249, November 25, 2002. Baker, 690 A.2d at 166 (Commonwealth v. Baker, 547 Pa. 214, 690 A.2d 164 (Pa. 1997)(quoting Pa.R.Crim.P. 114 (formerly Rule 9025)) (emphasis added). “Noting that this Court is the promulgator of the procedural rules in this Commonwealth and, as such, we fully intended the word “shall” in Rule 114 to be mandatory, we stated that the language of the Rule leaves no question that the clerk’s obligations are not discretionary. Id. 690 A.2d at 167.

Further emphasizing the compulsory nature of the notice and recordation procedures set forth in Rule 114, we held that the lower courts had erred in determining that a local rule absolved the clerk of courts of the obligation

www.chescobar.org to fulfill his duties under the Rule. 6 Id. 690 A.2d at 168; see Pa.R.Crim.P. 114 cmt. (“the notice and recording procedures are mandatory and may not be modified by local rule”).”

So there you have a clear and final word on the definition of the word “shall.”

Difficulties in definitions are not limited to only single words. Consider, for example, the use of certain letters from our alphabet to identify those who fit into a limited category, primarily defined by sexual orientation. For this group, the letters LGBT were used a lot. After digging up some articles on these letters, I found a couple that were helpful. Please note that I may quote from those articles and do not give my opinion as to right or wrong as to the definition used.

A starting place in the search for a definition of LGBT was easy to find since I like to use the Wiki encyclopedia. I do understand that it may not be the best, but it is an easy start. (So see the following site: https://en.wikipedia.org/ wiki/LGBT_rights_by_country_or_territory) Not only does it begin to explain the letters, it also compares the use of those terms throughout the world. And what should really interest the readers of this article, is that it looks at how the letters and the meaning of those letters affect the law. “ Rights affecting lesbian, gay, bisexual, and transgender (LGBT) people vary greatly by country or jurisdiction – encompassing everything from the legal recognition of same-sex marriage to the death penalty for homosexuality.”

The Honorable Judge Tunnell of Chester County, in re: Estate of Elaine M. Gessner, Deceased, 65 Ches.Co.Rep. 106 (2017), summed up one of the above issues, specifically the definition of marriage in the context of LGBT persons, as follows: “ Things changed, however, in 2013, when the United States Supreme Court in U.S. v. Windsor, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013) struck down §3 of the Defense of Marriage Act (“DOMA”), which had provided in determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

Thereafter, in 2014, the United States District Court for the Middle District of Pennsylvania in Whitewood v. Wolf, 992 F. Supp.2d 410 (M.D. Pa. 2014) held that

two of Pennsylvania’s marriage laws, 23 Pa.C.S. § 1102 (defining marriage as “[a] civil contract by which one man and one woman take each other for husband and wife”) and 23 Pa.C.S. § 1704 (declaring “the strong and longstanding public policy of this Commonwealth” to be that “marriage shall be between one man and one woman”) violated both the Due Process Clause and the Equal Protection Clause of the United States Constitution. Thereafter, in February 2015, Pennsylvania House Bill No. 489, Pennsylvania One Hundred Ninety-Ninth General Assembly – 2015-2016 was introduced to amend “Title 23 (Domestic Relations) of the Pennsylvania Consolidated Statutes, in preliminary provisions, further defining “marriage”; and, in miscellaneous provisions relating to marriage, repealing provisions relating to marriage between persons of the same sex and providing for same-sex marriages.” Finally, in June 2015, the Supreme Court in Obergefell v.

Hodges issued another landmark decision with regard to same sex marriage holding the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that samesex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.

Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are Continued on page 20 New Matter | 19

Did You Ever Wonder?

Continued from page 19

petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”2

now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.[I am adding the cites for the convenience of the readers. Obergefell v.

Hodges, 576 U.S. 644; 135 S. Ct. 2584; 192 L. Ed. 2d 609 (2015). Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972).]

So, the marriage rights issue with respect to LGBT individuals has, at least for the moment, been resolved by the United States Supreme Court. It is perhaps worth noting that this new and expanded definition of marriage does not address the older and broader prohibitions of interracial marriages being prohibited and, in many instances, enforced by criminal action and incarceration.

Thinking back a few paragraphs, the reader will recall that the laws affecting LGBT individuals are not just civil (e.g., the right to marry). They are also criminal, with some past laws even invoking the death penalty. For additional details, I quote Wiki again: “ During the colonial era of American history, the various European nations which established colonies in the Americas brought their pre-existing laws against homosexuality (which included capital punishment) with them. The establishment of the United States after their victory in the Revolutionary War did not bring about any changes in the status of capital punishment as a sentence for being convicted of homosexual behavior. Beginning in the 19th century, the various state legislatures passed legislation which ended the status of capital punishment being used for those who were convicted of homosexual behavior. South Carolina was the last state, in 1873, to repeal the death penalty for homosexual behavior from its statute books. The number of times the penalty was carried out is unknown. Records show there were at least two executions, and a number of more convictions with vague labels, such as “crimes against nature.” ” But that only affected the capital punishment issue. In Lawrence v. Texas, 539 U.S. 558; 123 S. Ct. 2472; 156 L. Ed. 2d 508 (2003), the United States Supreme court, in a 6-3 decision, decided that it was not criminal “...for two persons of the same sex to engage in certain intimate sexual conduct.” There were several issues to the case, but the main theme was that: “ The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The 20 | New Matter

As illustrated by these examples, from the moment that L, G, B, and T were first strung together as a new word, that word has had meaning, and its meaning is something the courts have worked to define in the context of applying the law. In more recent years, more letters, each standing for another distinct, yet similar, group, have been added: QUIAU now frequently appears after the original LGBT. These letters may be less familiar to the reader, so let’s take a look at what they stand for.

Just so my two favorite reading fans can feel better, I will tell you what I have found in my research for the additional letters. First, I found that the University of California, Davis campus has put together what the other letters should mean. (See https://lgbtqia.ucdavis.edu/ educated/glossary).3 The letter “Q” has two definitions. They are: “ Queer: One definition of queer is abnormal or strange. Historically, queer has been used as an epithet/slur against people whose gender, gender expression and/or sexuality do not conform to dominant expectations. Some people have reclaimed the word queer and self identify in opposition to assimilation (adapted from “Queering the Field”).

For some, this reclamation is a celebration of not fitting into social norms. Not all people who identify as LGBTQIA use “queer” to describe themselves. The term is often considered hateful when used by those who do not identify as LGBTQIA. uestioning: The process of exploring one’s own Q gender identity, gender expression, and/or sexual orientation. Some people may also use this term to name their identity within the LGBTQIA community.”

Notice the word “hateful”. in the definition of Queer.

The letter “I” has three definitions. One example is: “ Internalized oppression: The fear and self-hate of one he letters that are the focus of this article were never mentioned in the T decision of this case.

3 The reader should note that this website does not provide definitions like in a dictionary, but is rather a glossary of terms one might hear in the LGBT community.

2

www.chescobar.org or more of a person’s own identities that occurs for many individuals who have learned negative ideas about their identities throughout childhood. One form of internalized oppression is the acceptance of the myths and stereotypes applied to the oppressed group.” Notice the use of the word “hate” in the above.

The letter “A” has eleven definitions. One example is: “ Allyship: The action of working to end oppression through support of, and as an advocate with and for, a group other than one’s own.”

It is important to note that there is no single authority that defines or explains the meaning of the letters LGBTQIA+. Remember I told you I found several sources while researching the letters? Another article comes from ASHLEY MOOR in an article dated APRIL 18, 2019, entitled “What Each of the Letters in LGBTQIA+ Means, IT’S TIME TO BREAK DOWN THESE COMPLICATED CHARACTERS.” (See https:// bestlifeonline.com/what-lgbtqia-means/) As the examples below illustrate, there is disagreement not only with respect to definitions, but also with respect to what word each letter stands for.

Ms. Moor only has two words for the “Q”: “The “Q” in the LGBTQIA+ acronym has two meanings: “queer” and “questioning.” But the former is the most common.”

Ms. Moor only has two words for the “A”, Asexual and “ally.”

Ms. Moor only has one word for the “I”: “The term “intersex” is used to describe people who are born with reproductive or sexual anatomy that doesn’t fit the typical definitions of male and female, according to the Intersex Society of North America. And, just as there are a range of sexual orientations and gender identities within the LGBTQIA+ community, there are also an array of biological characteristics that exist among those who are intersex.”

The below update on this topic was covered in more detail in the context of employment law and was written

by Martricia O’Donnell McLaughlin, Esquire4, in the Pennsylvania Bar Association Quarterly, VOL. XCI OCTOBER 2020 NO. 4, pp. 109-110 and 122-132.

More current cases have increased the range of protection of the alpha group above, i.e. in the 103 page decision in Bostock v. Clayton Cty., 140 S. Ct. 1731; 207 L. Ed. 2d 218 (2020), the decision states that: Martricia O'Donnell McLaughlin, mclandg@hushmail.com, is a partner at the McLaughlin and Glazer law firm. She practices law and mediation in Easton, Pennsylvania, and is Co-Chair of the PBA LGBTQ Rights Committee.

4

“ Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.

The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids.” (@ p. 1737).

However, the only mention of the alpha list is in a footnote: “58 See, e.g., University of Wisconsin Milwaukee Lesbian, Gay, Bisexual, Transgender, Queer Plus (LGBTQ+).” So the US Supreme Court limited its decision on only the “...homosexual or transgender” of the three plaintiffs. “ The only statutorily protected characteristic at issue in today’s cases is “sex” – and that is also the primary term in Title VII whose meaning the parties dispute.” (@ p. 1737).

I also checked the United States Supreme Court decisions by alpha letters of LGBT and LGBTQ and discovered there were only two cases listed, the Bostick case listed above and Janus v. AFSCME, Council 31, 138 S. Ct. 2448; 201 L. Ed. 2d 924 (2018). The LGBT alpha list in Janus, supra. is only quoted in footnote “# 20 See Watanabe, How To Teach Gay Issues in 1st Grade? A New Law Requiring California Schools To Have Lessons About LGBT Americans Raises Tough Questions, L. A. Times, Oct. 16, 2011, p. A1.” Even a search of the full words from the alpha list do not appear in this decision.

So far, this article has focused on the importance of, and challenge in, defining the letters of the alphabet.

What about the non letter, i.e. “+”? Do the same challenges and concerns apply? It is not a letter, but it does stand for a word: “plus,” “added to,” “in addition” and is clearly meant to mean something that is connected to something else, in this case, the prior letters. The educators at the University of California, Davis campus do not include the “+” in their list. However, as another example of the many challenges posed by the need for definition, the article by Ms. Moor does. She wrote: “ Activists and members of the queer community have since come together to form the current acronym, “LGBTQIA+.” This denotation includes space for those identifying as lesbian, gay, bisexual, transgender, queer (and in some cases, “questioning”), intersex, asexual (and sometimes “ally”), and the “+” is for a plethora of other orientations and identities.”

Now it is your turn to add to the conversation. What Continued on page 22 New Matter | 21

Did You Ever Wonder?

Continued from page 21

does “plethora” and “other orientations” and “identities“ mean? Remember law school and the Socratic method of teaching? Ask a question that should have an answer and see what you are supposed to have learned.

definitions, here is a final gift of definitions. I couldn’t fail to give you one last gift. It is an example of a U.S. Supreme Court Opinion giving definition to a one-letter word: “a”. Note that the outcome in the case rests heavily on the meaning of a single letter. Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021).

Much of what is discussed about these issues is framed around the idea that membership in any of the groups described by LGBTQIA+ should not prohibit an equitable application of the law which applies to all citizens. I confess that I did not recall use of the word “equity” in the Constitution. Thanks to technology, downloads and search functions, I can report that the word “equity” is only listed once in the Constitution, i.e. see USCS Const. Art. III, § 2, Cl 1 and once in USCS Const. Amend. 11. The reality of how difficult it is to define groups of people and then abbreviate the group names using letters should come as no surprise, given the realities of language and communication.

“ In this case, the government sent Niz-Chavez an incomplete notice, which omitted required information. Two months later, the omitted information was provided in a second notice. The government argued that since these two notices together provided all the required information, the running of the 10-year period stopped, and NizChavez could not contest his deportation. By a vote of 6-3, the Court rejected the government’s position.

Justice Gorsuch wrote the majority opinion saying that the word “a” in the phrase “a notice to appear” meant that all of the required information had to be contained in “a” single notice.”6

Consider, for example, non-legal acronyms and abbreviations. It should be clear that even the most used of the abbreviations that all of us know is not true. The last example is “LOL.” As before, tell me what you know it to mean. So you think it means “Laughing Out Loud.”

I recently heard a guest host on a TV show tell a short joke. He said that there was a person he knew had passed and that he sent a thoughtful message to his spouse with sincere condolences and “LOL.” His sincerity was shattered when he found out what seemingly everyone knew but him. However, he was the winner of the embarrassment when others heard that it meant “Lots of Love” to him.5

As this recent U.S. Supreme Court opinion shows us, definitions matter. The choice of letters when abbreviating words matters. Consensus matters when defining a group in the context of legal rights. In light of the difficulty posed by defining words and letters, how should we define a symbol?

For those who may still doubt the importance of clear

I leave you with this parting question in the hope that you will continue our conversation: What does the + in LGBTQIA+ mean in the context of legislation and legal rights?

The guest was Rob O'Neil, the U.S. Navy Seal that shot Osama bin Laden.

PBA July Quarterly, 2021, In Scalia's Wake: The Future Of The Second Amendment Under An Originalist Supreme Court Majority, p. 151, by Anthony P. Picadio, Esquire.

5

6

S A V E T H E D AT E

2022 Spring

Bench Bar Conference Thursday, April 7, 2022 The DESMOND HOTEL, Malvern Registration begins at 8:15 a.m.

Member & Sponsor Networking Reception from 4-5 p.m. after conference.

22 | New Matter

CCBA Feature

www.chescobar.org

SUPPORTING WORKPLACE MENTAL HEALTH Focusing on employee wellness not only benefits your employees but can boost your company’s bottom line as well. Estimates that one in five Americans experience some form of mental illness, most without getting treatment, mean that many will continue to struggle with their issues, impacting both family life and work life, if employed. And although mental health struggles have long pre-dated COVID-19, the pandemic only served to exacerbate the health challenges for many individuals.

For the employer, the benefits of supporting employee mental health can be substantial. By showing an interest in the health and well-being of their staff they can help employees navigate through issues like anxiety, depression, burnout and traumas. In addition to showing that they truly care about their employees, providing mental health support can also increase productivity and improve the overall morale of the office.

The first step concerned employers can take is to look critically at their benefit portfolio to ensure that the resources they are providing adequately meets the needs of their working populace. Start by reviewing the mental health benefits provided by any base health insurance benefits, employee assistance programs (EAPs) and telehealth services, then make sure all these programs are being effectively communicated to employees so they will be able to take advantage of the resources being provided to them.

Finally, employers can create opportunities for management and human resource personnel to open up supportive conversations with employees regarding mental health issues, helping to reduce the stigma wherever possible by sharing any of their own personal experiences and challenges.

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.

Accelerate Your Business Owner-Occupied Commercial Mor tgages No prepayment penalt y Flexible payment terms Get star ted by contacting Chief Relationship Of f icer Marc Ernest

484-259-1852

marce@fmfcu.org

Locally Headquar tered New Matter | 23

Save Our Environment

A MOST TREASURED RIGHT: THE RIGHT TO DENY ACCESS AND THE FIFTH AMENDMENT

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

The Fifth Amendment to the U.S. Constitution provides, in part, as follows: o person shall … be deprived of life, liberty, or N property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Pennsylvania Constitution has a similar provision, and it is set forth in Art. 1, Section 10, Further, Fourteenth Amendment of the U.S. Constitution extends the provisions of the Fifth Amendment to states and local governments. The field of law that has evolved over disputes involving this portion of the Fifth Amendment is known as “takings clause law,” and has seen many twists and turns down through the years.

Takings clause law is of interest to environmental law practitioners because takings issues arise frequently in connection with environmental regulatory programs and land use controls. See, e.g., Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) (Pennsylvania law improperly restricted mining of coal under streets, houses and places of public assembly); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (a general zoning ordinance was upheld); Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) (New York City properly restricted construction above Grand Central Station, and the long-standing “Penn Central” test was developed); Agins v. City of Tiburon, 447 U.S. 255 (1980) (if land use regulations substantially advance legitimate government interest, and as long as the regulations do not prevent a property owner from making economically viable use of private property, then no compensation is required); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (governmental use regulations which deny a landowner of all economically beneficial use must be compensated); Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (requirement that 24 | New Matter

private land owner grant public easement as a condition of land development approval was a taking); Dolan v.

City of Tigard, 512 U.S. 374 (1994) (requirement that private land owner dedicate land for public greenway as a condition of land development approval was unconstitutional); Palazzolo v. State of Rhode Island, 533 U.S. 606 (2001) (denial of permission to place fill on coastal wetlands not a taking); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (32 month development moratorium was not a taking, and the planning agency was represented by the future Chief Justice Roberts); Kelo v. City of New London, 125 S. Ct. 2655 (2005) (use of eminent domain power to take private property for economic development purposes is a valid public use); and Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528 (2005) (the High Court overturned the Agins test, and addressed the question of whether a law establishing a rent cap was constitutional under the Fifth Amendment).

There are a number of different categories of a taking of private property, but two main “flavors” are: (1) physical takings, in which the government physically appropriates private property, and (2) de facto or regulatory takings, in which the government takes regulatory action which affects the use of private property. For decades, “use” restrictions of private property were evaluated using a flexible test presented in the Penn Central Transportation Co. case (using factors such as: (1) economic impact of the regulation; (2) degree of interference with reasonable investment-backed expectations; and (3) the character of the governmental action).

Two recent U.S. Supreme Court cases appear to have provided significant new protections to land-owners facing governmental restrictions affecting private property.

The first is Knick v. Township of Scott, Pennsylvania, 588 U.S. __, 139 S. Ct. 2162 (2019). This case was authored by Chief Justice Roberts (in a 5 to 4 decision), and the decision stands for the principle that landowners complaining about state or local action which takes or restricts their property may immediately invoke federal

www.chescobar.org court jurisdiction under the authority of 42 U.S.C. §1983. Scott Township, located in Lackawanna County, PA had passed an ordinance requiring that all burial grounds be kept open and accessible to the general public during daylight hours. The ordinance subsequently was withdrawn, but a property owner initiated action in federal court. This decision overrules the prior High Court decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473, U.S. 172 (1985). As a result of Knick, aggrieved landowners no longer need to exhaust state or local remedies before invoking federal court jurisdiction, and this case thus represents a significant procedural change in takings clause law. This change was forecasted as likely to cause a flood of federal court litigation over state or local takings disputes (which arguably could include variance denials, or the imposition of land development conditions, etc.), but this does not appear to have happened, at least so far.

The second case was decided in the October 2020 term of the U.S. Supreme Court. The case of Cedar Point Nursery, et al. v. Hassid, et al., 594 U.S. ___ (June 23, 2021), was also authored by Chief Justice Roberts (in a 7 to 3 decision). This case involved a 1975 California law which authorized third parties to enter private property (at specific, and limited times) for the purpose

of discussing labor issues with farm workers. In Cedar Point Nursery, the court found that the California law in question effected a per se physical taking under the Fifth Amendment.

The regulation did not restrict the owners’ use of the private property, but rather deprived the owners of the right to exclude third parties from entering their private property. Chief Justice Roberts stated as follows: he right to exclude is “one of the most treasured” T rights of property ownership. … According to Blackstone, the very idea of property entails “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” … In less exuberant terms, we have stated that the right to exclude is “universally held to be a fundamental element of the property right,” and is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”

Slip op at 7 (citations omitted).

So, Cedar Point Nursery case turns on the opinion of the justices as to what constitutes a physical taking. A majority of justices believe that by granting access to Continued on page 26

New Matter | 25

Save Our Environment Continued from page 25

third parties, even for a limited amount of time, the regulation confers a right to physically occupy private property and thus constitutes a physical taking.

Chief Justice Roberts went on to address (and dismiss) concerns that the holding in Cedar Point Nursery would jeopardize many state and federal government regulations or activities, including entry onto private property (safety and environmental compliance inspections come to mind), as follows: irst, our holding does nothing to efface the distinction F between trespass and takings. Isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right. … This basic distinction is firmly grounded in our precedent.

S econd, many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights. As we explained in Lucas v. South Carolina Coastal Council, the government does not take a property interest when it merely asserts a “preexisting limitation upon the land owner’s title.” …

For example, the government owes a landowner no compensation for requiring him to abate a nuisance on his property, because he never had a right to engage in the nuisance in the first place. … hird, the government may require property owners to T cede a right of access as a condition of receiving certain benefits, without causing a taking. In Nollan, we held that “a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking.” …

The inquiry, we later explained, is whether the permit

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

utbf.com | 610.692.1371 | slagoy@utbf.com 26 | New Matter

condition bears an “essential nexus” and “rough proportionality” to the impact of the proposed use of the property. Dolan, … .

Slip op. at 17-20 (citations partially omitted).

In a dissent authored by Justice Breyer, and joined

by Justices Sotomayor and Kagan, Justice Breyer made the argument that the regulation did not physically appropriate the private property; rather, it temporarily restricts the owner’s right to exclude third parties, and therefore the regulation should be evaluated according to the precedent established in the Penn Central case.

With Cedar Point Nursery, the Supreme Court seems to be signaling that it is willing to put certain governmental regulations that do not have the effect of appropriating private property in the classic sense (by physically taking the property, or ousting the owner of possession) into the category of per se physical taking. Evidently, the majority in Cedar Point Nursery thought that the right-to-exclude “stick” is one of those really important “sticks” in the “bundle of sticks” that constitutes property rights, and that messing with that “stick” constitutes a per se physical taking. Prior to the Cedar Point Nursery holding, I would have expected the High Court to evaluate the effect of the California regulation using Penn Central standards.

How narrow a ruling Cedar Point Nursery is remains to be seen.

The majority did not provide guidance concerning how a court might evaluate what compensation is appropriate for the type of invasion required by the California law at issue. I suppose this would involve a battle of appraisal experts who would present theories on what level of compensation is appropriate for a physical taking such as was presented. Is a “treasured right” worth $1.00 a day, or $1,000,000.00 a day? Is the right of access compensable on each and every day access is possible, or only on the days access is exercised? The California law at issue has been in force for almost half a century; is compensation due from the date of enactment? This should be interesting, if it gets that far.

CCBA Feature

Employment Law

www.chescobar.org

By Jeff Burke, Esquire MacElree Harvey, Ltd

Update December 2021 2021 has been another roller coaster in the world of employment law. Here is a summary of where things stand at the end of the year, both nationally and in our region.

SUPREME COURT TO HEAR CHALLENGES TO COVID-19 VACCINE MANDATES IN EARLY JANUARY Arguments in the lawsuits seeking to block the Biden administration’s vaccine mandate for private employers will be heard by the U.S. Supreme Court on January 7, 2022. At issue is the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) requiring businesses with at least 100 employees to ensure workers are vaccinated against the coronavirus or to wear masks and undergo weekly COVID-19 testing. A federal appeals court had temporarily blocked the rule, but the 6th Circuit Court of Appeals lifted the stay on Dec. 17 in a consolidated action.

Consequently, employers will have to comply with the ETS unless the Supreme Court rules otherwise. The start date for the testing requirement has been extended to Feb. 9, but other components of the ETS take effect on Jan. 10, including the requirement for employers to determine the vaccination status of each employee and develop a written policy.

Another mandate being ruled upon comes from the Centers for Medicare & Medicaid Services (CMS), which requires COVID-19 vaccination for staff employed at Medicare- and Medicaid-certified providers and suppliers. Through various legal challenges, this requirement remains blocked in 25 states. The U.S. Department of Justice (DOJ) has asked the Supreme Court to reinstate the rule nationwide.

2 KEY EMPLOYMENT CASES IN THE 3RD CIRCUIT IN 2021 PA Union Defeats Post-Janus Challenge to Membership Dues Early in 2021, the 3rd Circuit Court of Appeals (which encompasses Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands) made a key pro-union ruling in the wake of the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME. In Janus, the U.S. Supreme Court ruled that public workers who decline to join unions can’t be forced to pay the unions fees. In the 3rd Circuit case, an employee who works for a Scranton, PA Public Library resigned from the union postJanus, and attempted to assert a class action for a refund of the “compulsory” dues she paid before Janus. The 3rd Circuit rejected the challenged, finding the employee’s “claimed

injury of economic loss occurred not because of the union’s actions toward nonmembers but because of her decision to join the union”. Thus, the 3rd Circuit decision should insulate unions from future challenges seeking recovery of fees from members who withdraw following Janus. Non-union members who were forced to pay union-related fees may theoretically still a viable cause of action.

3rd Circuit tosses pro-business ruling in Fight Over Pennsylvania’s COVID-19 Mandate In 2020, a Pennsylvania U.S. District Judge ruled that Governor Tom Wolf’s pandemic stay-at-home orders, limits on crowd size, and business closures, were overreaching and arbitrary and violated citizens’ constitutional rights. In August 2021, the 3rd Circuit dismissed a judge’s ruling, saying the case became moot because the statewide mitigation measures expired and because Pennsylvania voters had since constrained a governor’s emergency powers through amendments to the state constitution. While the 3rd Circuit’s decision effectively erases a pro-business precedent, the challenge continues. The businesses are seeking review from the U.S. Supreme Court, which their legal counsel has explained: “We think it is crucial that the Supreme Court take this case because the issue of unfettered executive authority during a pandemic remains very much an ongoing issue”.

New Matter | 27

CCBA Feature

Grand Slam: 4 Workflows You Need in Your Law Practice WORK FLOW

By Jared D. Correia, Esq. Red Cave Consulting

B

uilding and managing processes is the key to managing a successful business. That includes law firm businesses, by the way. Even if attorneys have been reticent to adopt processes into their business models.

Processes are rooted in workflows – which are just aggregations of tasks. Tasks within a workflow each need to be assigned to at least one individual. Entire workflows can be managed via software tools, like productivity software, task management software and/or law practice management software – which means that lawyers don’t have to be overbearing micromanagers any longer.

Checking on the status of a case is as simple as logging in, and seeing which tasks are due – which have been done, and which have not.

Law firms that use workflows tend to be more efficient, make fewer mistakes and offer their clients a more consistent customer experience.

But, what sort of workflows do you need? At least these four types: (1) Administrative Workflows: A successful (and, by that I mean: efficient and profitable) law firm is one in which attorneys can delegate work effectively, and practice at the top of their law licenses – because you can’t pilot the

28 | New Matter

plane, and pass out the pretzels at the same time. But, for administrative staff, workflows ensure that everybody is on the same page, and can quickly access specific task sets, allowing them to get back to (potentially billable) substantive work, faster.

(2) Substantive Workflows: These are case workflows.

While every law firm thinks their work product on each case is a special little snowflake, there are similarities among case types. And, it’s likely that, if you sat down and thought about it, you could probably generate anywhere from 5-10 tasks for each case type, that you need to do every. single. time. And, that’s the root of your case management process. Installing these means that you and your team will make fewer errors, and that your customers will have a common and streamlined experience with your firm.

(3) Intake Workflow: After the COVID pandemic hit, law firms became hyper-aware of the fact that they were lacking in automated and/or virtual intake processes, as the traditional, in-person systems they relied on became suddenly unavailable. For modern law firms, then, it’s essential to develop a ‘client journey’, or a map of how a lead becomes a client, and then automate that, to the extent possible, using technology applications.

(4) Closing Workflow: When a case completes, most law firms don’t do much of anything; but, there should also be a case-closing workflow in your practice. Rather than simply archiving your file (electronically or otherwise), and calling it a day – truly close out the file. If you’re a personal injury attorney, make those disbursements. If you’re a real estate attorney, get those mortgage discharges. And,

www.chescobar.org for each and every one of your closed cases, transfer an electronic version of the client file, or make it accessible to the client + add them to an email list of former clients for remarketing purposes.

The next logical question, once you build your workflows, is: what software do you launch them in? As alluded to above, there are lots of options. Law practice management software or case management software is a relational database for law firms that tracks matters, and associated information: time and billing records, calendar events and appointments, and tasks. That last one is important, because, as it turns out, attorneys can build and manage workflows in case management software, and those workflows can also appear on the attorney’s preferred calendar, when the productivity software and case management software can be integrated. This includes those tasks within a workflow that have been assigned to others. The same goes for time and billing software (which focuses on time and billing data and metrics for clients, and is not a robust ‘matter management’ suite) – so long as the software can integrate with calendaring software. Or you can leave your calendar out of it entirely, as there are standalone task management tools that do not necessarily invoke a calendar, and that can be used to manage workflows, as well. These tools can also provide a nonstandard array, if you prefer, say a Kanban board, to a traditional list of tasks.

Exclusive Offers for Attorneys Contact Glen Reyburn to discuss your individual needs or the unique needs of your firm, employees and clients.

Loans | Mortgages | Customized lines of credit Private banking deposit solutions

Glen Reyburn, ChFC® Vice President, Private Banking NMLS #663174 Office: 484.956.0490 Cell: 610.420.8813 greyburn@wsfsbank.com

Member FDIC wsfswealth.com

NEED HOME CARE SERVICES?

There are almost as many technology tools as there are workflows options.

Let Hosana take care of your home care needs.

Perhaps the best news about the effective addition of processes to the law firm environment is that it doesn’t only provide an immediate boost to law firm revenue, it’ll also have a lasting effect, and perhaps in more ways than you think. Building processes makes your law firm a more compelling acquisition target when or if you might decide to sell. Most law firm owners can only offer their thenexisting book of business plus good will in a sale; but, that only goes so far, as the selling attorney walks away, and has limited value. Instead, transferring that in addition to viable processes for substantive work, and maybe a marketing system, to boot, significantly increases the value of the law firm asset.

Our qualified Caregivers and Clinicians will help you reach your highest optimum recovery by assessing your present condition, then we’ll create an individualized care plan that caters specifically to your needs.

And, as more and more U.S. jurisdictions consider alternative business structures in the legal space, it may not even be a traditional law firm that reaches out to buy your practice.

Now, who knew that creating workflows could have significant effects?

Help at home with everyday activities can bring independence and peace of mind, especially for families living with Alzheimer’s disease or dementia.

Care is provided in shifts of up to 24 hours a day.

We can also hire and train a trusted friend or family member to care for you.

SERVICES WE PROVIDE: Skilled

Non-skilled

Registered Nurse (RN) Physical Therapist (PT) Occupational Therapist (OT)

Personal Care Services-Trained Caregivers (DCW) Home Health Aides (HHA) Certified Nurse Assistants (CNA’s)

Call us today for a FREE consultation | 484-768-6963 info@hosanahomehealth.com | www.hosanahomehealth.com

New Matter | 29

CCBA Feature

www.chescobar.org

By Kelly A. Jurs, Esquire Gawthrop Greenwood, PC

Commonwealth v. Harris:

The Superior Court Holds that Hearsay Isn’t Enough

F

or some time, confusion has reigned with regard to the amount of hearsay evidence prosecutors (in Pennsylvania, prosecutors represent “the Commonwealth”) can use to prove a prima facie or bare-bones case at the preliminary hearing in a criminal case. To establish a prima facie case, the Commonwealth must prove that a crime may have been committed and that the defendant may have committed that crime; a very low bar of proof. In the past, based upon existing case law, the Commonwealth could rely upon hearsay testimony in proving its case. The Commonwealth frequently did this, for example, by presenting only the testimony of a police officer, describing what he or she was told by witnesses, rather than the testimony of the actual witnesses. On January 3rd of this year, the Superior Court provided significant clarity on this issue in the case of Commonwealth v. Harris, 2022 Pa. Super.

1, when it held that the Commonwealth is prohibited from relying on hearsay alone, for each element of each offense, to establish a prima facie case that a defendant committed a crime at a preliminary hearing. The Court further affirmed that relying on hearsay alone violates a defendant’s fundamental due process rights.

30 | New Matter

Hearsay at the Preliminary Hearing: A Brief History Prior to Harris, a series of cases presented confusing guidelines as to the quality of evidence that the Commonwealth had to present at a preliminary hearing to establish a prima facie case. For years, it was generally accepted under Commonwealth v. Verbonitz that fundamental due process prevented the Commonwealth from relying on hearsay alone to establish a prima facie case. Then in 2016 in Commonwealth v. Ricker, the Superior Court found that Verbonitz, a plurality opinion by the Pennsylvania Supreme Court, was “not binding and valuable only insofar as its rationale can be found persuasive.” The Ricker panel ultimately held that because hearsay evidence was sufficient to establish one or more elements of a crime, it was sufficient to meet all the elements. The Superior Court went even further, concluding that a defendant does not have a constitutional right to confrontation at a preliminary hearing.

In Commonwealth v. McClelland, decided in 2017, the Pennsylvania Supreme Court held that Verbonitz

CCBA Feature

www.chescobar.org

is precedential and that relying only on hearsay at a preliminary hearing violates a defendant’s due process rights. The problem then became that the McClelland court did not specify how much hearsay is, or is not, permissible to hold criminal charges for further action at the Court of Common Pleas. This brings us to Commonwealth v. Harris, where the Commonwealth argued that because it presented direct non-hearsay evidence at the preliminary hearing, establishing that a crime was committed, it can use hearsay evidence that the defendant, Ronald Harris, was the person that committed that crime.

the live, in-person testimony of Nisheed Stewart. Going forward, this holding precludes the Commonwealth from relying on hearsay alone at a preliminary hearing to establish a prima facie case that a defendant committed a crime. This is particularly useful for defense counsel in cases involving charges of domestic violence and sexual assault, where frequently an officer’s testimony is offered instead of an accuser’s. The Harris decision protects a defendant’s rights to confrontation and crossexamination, as well as fundamental due process rights, acknowledging that the preliminary hearing truly is a critical stage of criminal proceedings.

Harris and Preserving a Defendant’s Due Process Rights

TAKEAWAY: The Commonwealth must prove each element of each offense charged at a preliminary hearing by direct evidence and not hearsay. Hearsay alone may not be the sole basis to establish each element of a criminal offense.

Ronald Harris was charged with attempted murder and related offenses after allegedly shooting Nisheed Stewart. Stewart failed to appear for any of the scheduled preliminary hearings and to establish the identity of the defendant, the Commonwealth presented only testimony of the detective who took Stewart’s statement, which hearsay identified Harris as the shooter. Harris was held for court on all the charges, based on the Court’s decision in Ricker, which held that hearsay alone is enough to establish a prima facie case. While the case was pending, the Pennsylvania Supreme Court overruled Ricker in the McClelland decision, holding that hearsay alone was not sufficient to establish a prima facie case. The trial court dismissed all charges because there was no direct nonhearsay evidence that Harris shot Stewart.

The Commonwealth appealed the trial court’s decision, arguing that while it did rely on hearsay evidence to identify Harris, it also presented non-hearsay evidence to establish the element that a crime was committed, including shell casings recovered from the scene. The Commonwealth’s position was that as long as it presented some direct evidence for one element of a charged offense, then it could rely on hearsay alone for other elements of the crime, including identification of the defendant. The Superior Court disagreed.

Implications for Defense Counsel Ultimately, the Superior Court found that no direct evidence was offered that Ronald Harris committed the crimes charged and that for a court to find that the hearsay evidence was sufficient to be reversible error.

Harris was kept in jail pre-trial for nearly a year-and-ahalf, even though the Commonwealth was never able to move forward with trial because it could not produce

Save the Date Chester County Bar Foundation

2022 Key Gala Thurs, May 12, 2022

Please join us for our 8th Annual Chester County Bar Foundation Key Gala at Penn Oaks Golf Club, West Chester, PA Purchase your ticket today and enjoy a night out with cocktails, light dinner , and an exciting live auction; all while supporting the CCBF.

Ticket Price: $85 per person | 2 for $160

Reserved Table of 8 for $600 | Table of 10 for $750

Register today at chescobar.org or call us at 610-692-1889.

New Matter | 31

CCBA Feature

www.chescobar.org

LAW FIRM CYBERSECURITY: 3 Best Practices To Keep You Safe

C

ybersecurity incidents are on the rise and unfortunately, law firms are attractive targets for cybercriminals.

However, it isn’t just external threats you need to worry about.

Every employee has the ability to either intentionally or accidentally compromise the security of your firm. This is why it’s so important to take a proactive approach to maintaining strong cybersecurity protections.

Here are three simple ways to improve your firm’s cybersecurity.

Draft an Acceptable Use Policy An acceptable use policy (AUP) explicitly outlines the rules employees must follow in regards to the firm’s network, software, computers, and mobile devices. It clearly states how employees should and shouldn’t use both employer-provided technology and personal mobile devices like smartphones and tablets.

One of the main reasons to implement an AUP is the ability of employees to either deliberately or inadvertently compromise the security of your company. Ipswitch, a provider of IT management software, reported that nearly three-fourths of security breaches are due to employee actions (either intentional or accidental).

An AUP ensures that employees understand their responsibilities in regards to technology use and helps educate them on identifying possible cybersecurity threats, which can help decrease your firm’s risk.

Develop an Incident Response Plan Ideally, your firm will never experience a data breach or cyberattack. Realistically, you need to be prepared. That’s why an incident response plan is essential.

The steps your firm takes immediately upon discovery of the issue will determine how extensive (and expensive) the damage will be. An effective incident response plan includes the following steps:

32 | New Matter

· Designate an incident response planning team · Classify the type/extent of the incident · Complete initial reporting · Escalate the incident, as appropriate · Inform affected individuals and organizations · Investigate and collect evidence · Mitigate further risks · Execute recovery measures Your incident response plan should be regularly evaluated and updated. With existing threats continuously evolving and new threats appearing almost daily, you must take a proactive approach to maintaining strong cybersecurity protections.

Adopt Trusted, Cloud-Based Technology Many law firms that favor on-premise or hosted solutions to cloud-based platforms will cite security as the reason they refuse to move their data to the cloud. But the truth is, cloud-based solutions are considerably more secure than on-premise or hosted software.

An on-site IT team may do periodic network vulnerability checks, but they have dozens of other issues to worry about. Providers of cloud legal solutions have employees dedicated exclusively to ensuring their IT infrastructure is as strong and secure as possible.

Additionally, because updates to cloud solutions are deployed automatically, you’ll know the platform always has the latest patches and the provider has addressed known vulnerabilities.

The other key is to only work with technology partners you know you can trust. For example, LawPay’s online payment solution receives quarterly scans as well as an annual audit from a qualified security assessor, which means your data is guarded by advanced fraud protection and data encryption measures.

To learn more about LawPay and how we make it easy to securely accept payments, visit lawpay.com/chescobar.

31 S T A N N U A L

GREGORY PORTER

DAVID SANBORN

WYNTON MARSALIS

JOEY DEFRANCESCO

PATTI AUSTIN

BÉLA FLECK

April 1-10, 2022 Reading, PA JAZZ AT LINCOLN CENTER ORCHESTRA with WYNTON MARSALIS

BÉLA FLECK: MY BLUEGRASS HEART

GREGORY PORTER

SELWYN BIRCHWOOD

BRIAN CULBERTSON MARCUS ANDERSON

NAJEE with special guests BOBBY LYLE, PHIL PERRY

DAVID SANBORN & FRIENDS

BONEY JAMES

JOEY DEFRANCESCO TRIO

SPECIAL EFX ALL-STARS

JAKE SHIMABAKURO

FOUR80EAST

CHUCK LOEB MEMORIAL ALL-STAR JAM featuring RICK BRAUN, GERALD VEASLEY, BRIAN BROMBERG and more

JEFF KASHIWA ERIC DARIUS

CHRIS “BIG DOG” DAVIS presents CELEBRATING THE WOMEN IN JAZZ featuring PATTI AUSTIN, MAYSA, LINDSEY WEBSTER and more ANNIVERSARY CELEBRATION CONCERT featuring ERIC MARIENTHAL, KEIKO MATSUI, EVERETTE HARP and more

presented by

PETER WHITE & VINCENT INGALA with special guest MINDI ABAIR

... and many more!

Tickets on sale NOW at berksjazzfest.com PROUD SPONSOR OF BOSCOV’S BERKS JAZZ FEST

34 | New Matter

New Matter | 35

INITIATIVE IN PRACTICE® for every client. in every matter. every day.

O

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

Whether your legal concerns encompass personal or business matters, MacElree Harvey is a law firm where you will always find Initiative in Practice. ®

Centreville, DE 302-654-4454

Kennett Square, PA 610-444-3180

BANKING & FINANCE BUSINESS & CORPORATE CRIMINAL DEFENSE EMPLOYMENT LAW ESTATE, TRUST & ELDER LAW FAMILY LAW LITIGATION PERSONAL INJURY REAL ESTATE & LAND USE TAX LAW

Hockessin, DE 302-239-3700

West Chester, PA 610-436-0100

Contact Us info@macelree.com macelree.com @MacElreeHarveyLtd

ATTORNEYS AT LAW