New Matter
THE AWARD WINNING PUBLICATION OF THE CHESTER COUNTY BAR ASSOCIATION • CHESTER COUNTY, PA | www.chescobar.org
3rd Quarter 2022
In This Issue...
President’s Message: Stay Well and Optimistic Page 4
What is a Judicial Precedent? Page 8
From the Desk of the Executive Director Page 18
2022 Fall Bench Bar Page 19
Opening Doors to Legacy Philanthropy Page 28
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Content
New Matter CCBA Officers Michelle Bernardo-Rudy, President Bryan L. Nagle, Vice President Donald Lynn, Jr., Treasurer James Doyle, Secretary
3RD QUARTER 2022
FEATURES Benchmark Federal Credit Union Reports that Even the Most Savvy are Falling Victim to Scams.......................................6
Legal Aid of Southeastern PA Celebrates 20+ Years of Service at Fête for Justice! 4 Freedoms, 4 Counties, 4 Justice! .......................30
Chester County Bar Foundation 2022 Bar Sail ................13
Alternative Payment Methods: 5 Benefits for Law Firms....................34
Chester County Bar Foundation 2022 Gala Key...............14
IN EVERY ISSUE
2022 Fall Bench Bar
New Matter Committee Maria Janoski, Editor Rami Bishay Mark Blank, Jr. Ryan Buchanan Charles T. DeTulleo Jennifer Fink Andrew Lehr Shannon McDonald John McKenna Kim Denise Morton Mary Wade Myers Sara Planthaber Karyn L. Seace Bill Wilson
Judge Paula Ott Honored by Law Firm Gawthrop Greenwood with Piece of Pennsylvania History..........................15
President’s Message.................................4 Did You Ever Wonder?............................8
Join us in
Fall Bench Bar 2022.............................19 Come Celebrate America and Our Bar Association Veterans on Veterans Day 2022 .......................23
Save Our Environment........................16 From the Desk of the Executive Director.........................18
Alexandria, Virginia Opening Doors to Legacy Philanthropy...........................28
The Blank Page.......................................24 Initial Consult: Fredda Maddox, Esq.............................35
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.
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President’s Message
Stay well and
OPTIMISTIC Michelle Bernardo-Rudy, Esquire President Chester County Bar Association
I
t is hard to believe that I am wrapping up the first six months of my tenure as CCBA President. It is unbelievable how fast the time is going. Looking back on the activities of the bar association, it has been a very busy three months. The Bar Foundation had a very successful Key Gala, raising a record $87,000+ for the Foundation. We kicked off the Diversity Intern Program in the beginning of June. The Board also held a strategic planning retreat. We met over an afternoon and shared ideas of where we would like to see the bar association in the next few years. I want to thank the board for taking time out of their busy schedules to attend and brainstorm with everyone. We sailed away to Baltimore for our annual bar sail. It was a great time and I, for one, enjoyed seeing everyone happy and relaxed on the dock and out at dinner. We held another Women in the Law CLE and decided that we will hold two more Women’s forums before the end of the year. I will admit that I am pushing up against a deadline with this article, but I have to say, I am glad I procrastinated on this one. Over the Fourth of July weekend, I visited Charleston, South Carolina. It’s a place we visit often as 4 | New Matter
my husband has family there. It is a beautiful city, rich in history, and has an amazing food scene. On the morning of the Fourth of July, we walked down to witness the reading of the Declaration of Independence on the steps of the Old Exchange Building. It was an experience I will not soon forget. Listening to the words written 246 years ago, you realize what the signers of the Declaration of Independence were putting on the line. Had they lost, they surely would have been tried for treason. Listening to the words of the document, it is a true indictment against the crown and against tyranny. It was also a good reminder about how many parts of the Declaration of Independence laid the foundation for the Constitution. The founders of this country had incredible foresight. Or, maybe things were not so different then as they are now. They were divided then, maybe just as much as we are today. There were many loyalists who had much to lose by breaking ties with England. But the colonists were undeterred. I am grateful to those brave men and women who, so long ago, fought for the freedom of this land. Along those lines, when the Constitution was drafted and the framework for our government was created, the separation of powers was paramount to that vision. This is just as important today as it was then. As we have seen in the last couple of weeks, the Supreme Court has released some controversial opinions. The opinion overturning Roe v. Wade and the leak of the draft has brought to my mind the Constitution and the separation
of powers. While I have not read the full opinion, and will therefore refrain from commenting on it directly, I want to address the breach of confidence that occurred when information about the draft of the decision was leaked. I have mentioned before the importance of an independent judiciary. The impact the leak had on the community and resulting pressure put on the judges through threats cannot be ignored. Our system of government was set up to ensure checks and balances. While it is not always perfect, the remarkable foresight the drafters of the Constitution had cannot be diminished. While I cannot say, personally, that I am happy about the end result of the decision, I can say that we must allow the Courts to continue to operate independently. Independent from popular opinion. Independent from outside influences. Independent to make decisions based on the law and the Constitution. I believe it is part of our duty as lawyers to educate people as to how important it is that the judiciary retain that independence. Looking forward, the summer will be a bit more subdued for events. We will have the Intern Happy Hour on July 14th and the Chester County Bar Foundation Phillies Game, which is August 27th. Moving through the remaining six months, we are planning to hold CLEs on self-defense, financial fitness, and hopefully a yoga session or two! By the time you read this we will have launched our registration for the Fall Bench Bar, as well. I am very excited about this year’s Bench Bar, which is in Alexandria, Virginia – another beautiful, historic city – from September 29-October 1 at The Alexandrian. It is a beautiful hotel just a few blocks from the scenic Potomac River. There are many shops, bars, and restaurants to explore in your free time. We are planning to have a DJ, a CCBA-sponsored bus trip to Mt. Vernon, and countless other activities to do and see in and around Alexandria. Washington, D.C. is also just a short drive away. I hope everyone has a wonderful summer. As always, I want to thank Matt and the Bar Association staff for pulling off the many successful events these past couple of months! We have more to come and more to offer. I hope to see everyone around town. Stay well and optimistic. I will see you on the flip side of summer!
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New Matter | 5
CCBA Feature By Daniel J. Machon, Jr. President and CEO of Benchmark Federal Credit Union
Benchmark Federal Credit Union Reports that Even the Most Savvy are Falling Victim I to Scams
f you think you’ve seen it all when it comes to scams, think again. Bad actors continue to evolve their methods, and Benchmark Federal Credit Union is seeing an alarming uptick in the number of scams targeting people of all ages and backgrounds, including savvy job seekers who are looking to work from home. In recent weeks, Benchmark Federal Credit Union has alerted numerous members to potential scams before financial transactions were completed on their accounts. In one notable case, an individual thought they had accepted an at-home job with a reputable company. The Benchmark member received a check that appeared legitimate, for the purpose of funding
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CCBA Feature home office supplies. When they submitted the check for deposit, Benchmark FCU staff had suspicions and alerted the member that the situation may be a potential scam. The member was advised to follow up with their new “employer” by contacting them at a valid number listed for that company. The company confirmed it was a scam by an outside party. The check was indeed fake, and so was the job listing. The scammer’s hope was that money would be wired from its new “employee” before the fake check bounced. According to the Federal Trade Commission, Americans were scammed out of $68 million due to fake business and job opportunities in the first quarter of 2022. This is a significant concern as more people are being asked to return to the office, and many are choosing to seek workfrom-home alternatives. Scam artists are detecting that vulnerability and capitalizing on it. Benchmark FCU staff are highly trained to detect such scams. When advising your clients, one recommendation is to ensure they check with their bank or federal credit union about anti-scam services and leverage those services as they pursue work-from-home job opportunities. Remind clients that a reputable financial institution will never directly call, text, or email you to verify information or have you click on a link to do so. It is a violation of strict privacy policies. Instead, financial institutions like Benchmark FCU will leave you a recorded message asking you to return the call at your convenience. Check to be sure the phone number on the message matches the one you’ve always used for your financial institution, then return the call. If you or someone you know is pursuing a work-fromhome job, the FBI advises looking out for the following warning signs during the hiring process:
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Did You Ever Wonder?
What is a Judicial Precedent?
By Charles T. DeTulleo, Esquire Law Office of Charles T. DeTulleo
T
his article was started on June 25, 2022, in advance of the submission requirement of New Matter deadline of July 1, 2022. My decision to write about this topic is based on two recent decisions by the United States Supreme Court [(SCOTUS) hereinafter (USSC)] cited as slip opinions, DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN'S HEALTH ORGANIZATION ET AL., CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, No. 19-1392. _____ U.S. _____, 2022, Argued December 1, 2021 - Decided June 24, 2022, and NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL. v. BRUEN, SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL., CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, No. 20-843. _____ U.S. _____, Argued November 3, 2021 - Decided June 23, 2022. One of the main themes of the Dobbs case concerns precedence as it relates to the (USSC) decision in Roe v. Wade, 410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 and
8 | New Matter
Planned Parenthood v. Casey, 505 U.S. 833; 112 S. Ct. 2791; 120 L. Ed. 2d 674; 1992 U.S. LEXIS 4751; 60 U.S.L.W. 4795. The decision in the New York case also involves judicial precedence as it relates to the history of a New York state law. [N. Y. Penal Law Ann. §400.00(2)(f)]. The legal definition of a judicial precedent, also known by the latin term stare decisis, is common knowledge to every law school graduate. It provides a comforting signal to the graduate that she/he need not worry a lot about massive changes in the law that our courts look at on almost a daily basis. Even though the judicial system of the United States prohibits the courts from “making law,” there is a common expression used that when a court decides a case the decision becomes “case law.” There is typically some confusion by people who need an attorney for a legal purpose to have their understanding about what the actual “law” is in their case. For laymen reading this article, the ideas expressed are more than just words or theories. Your lawyer that pursues representation of your matter relies heavily on the courts following this judicial precedent to obtain a good result in your case. If a judicial precedent is reversed, overruled or overturned, it may result in you losing your case or making it worse. In some cases, it may even result in you winning your
www.chescobar.org case and making it better. It is estimated that the (USSC) has reversed itself about (230) times. (See below for partial list.) So I start with some definitions from different sources. The first comes from Black’s Law Dictionary. “ Precedent. An adjudged case or decision of a court of justice, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law. I t means that a principle of law actually presented to a court of authority for consideration and determination has, after due consideration, been declared to serve as a rule for future guidance in the same or analogous cases, but matters which merely lurk in the record and are not directly advanced or expressly decided are not precedents. Empire Square Realty Co. v. Chase Nat. Bank of City of New York, 43 N.Y.S.2d 470, 473, 181 Misc. 752; Kvos, Inc. v. Associated Press, 299 U.S. 269, 279, 57 S.Ct. 197, 81 L.Ed. 183.” (Black’s Law Dictionary, Revised Fourth Edition, p. 1348, 1968). Obviously the above is an old definition with old cases listed. Lawyers doing research would then search those old cases to see what they contain. There are several databases that are used by law firms. I am using Lexis for this article. The first thing noticed is that there are more complete citations to the case, i.e. Empire Square Realty Co. v. Chase Nat’l Bank, 181 Misc. 752; 43 N.Y.S.2d 470; 1943 N.Y. Misc. LEXIS 2250, 1943 and KVOS, Inc. v. Associated Press, 299 U.S. 269; 57 S. Ct. 197; 81 L. Ed. 183; 1936 U.S. LEXIS 995. We would also check the subsequent history of each case using the same database for all the cases that have even cited the above or done something to the decision of the case by state and federal courts. At the date of drafting this article, the Empire case only had (8) cases. However, in the Kvos case there were (555). Ten of the Kvos subsequent cases were from the (USSC). Sound easy? In some cases it is, in most cases it is not. Let me now introduce you to one of my other sources of information, the Wikipedia website, for the definition of precedent. “ A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive without going to courts for a court or other tribunal when deciding subsequent cases with similar issues or facts. Commonlaw legal systems place great value on deciding cases according to consistent principled rules, so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. The principle by which judges are bound to precedents is known as stare decisis (a Latin phrase with the literal meaning of “to stand in the-things-thathave-been-decided”). Common-law precedent is a third kind of law, on equal footing with statutory law (that is, statutes and codes enacted by legislative bodies) and
subordinate legislation (that is, regulations promulgated by executive branch agencies, in the form of delegated legislation) in UK parlance – or regulatory law (in US parlance). Case law, in common-law jurisdictions, is the set of decisions of adjudicatory tribunals or other rulings that can be cited as precedent. In most countries, including most European countries, the term is applied to any set of rulings on law, which is guided by previous rulings, for example, previous decisions of a government agency. Essential to the development of case law is the publication and indexing of decisions for use by lawyers, courts, and the general public, in the form of law reports. While all decisions are precedent (though at varying levels of authority as discussed throughout this article), some become “leading cases” or “landmark decisions” that are cited especially often. Generally speaking, a legal precedent is said to be: • applied (if precedent is binding) / adopted (if precedent is persuasive), if the principles underpinning the previous decision are accordingly used to evaluate the issues of the subsequent case; • distinguished, if the principles underpinning the previous decision are found specific to, or premised upon, certain factual scenarios, and not applied to the subsequent case because of the absence or material difference in the latter's facts; • modified, if the same court on determination of the same case on order from a higher court modified one or more parts of the previous decision; or • overruled, if the same or higher courts on appeal or determination of subsequent cases found the principles underpinning the previous decision erroneous in law or overtaken by new legislation or developments. I n contrast, civil law systems adhere to a legal positivism, where past decisions do not usually have the precedential, binding effect that they have in common law decisionmaking; the judicial review practiced by constitutional courts can be regarded as a notable exception.” (Wikipedia on “precedent” as of June 25, 2022, https://en.wikipedia.org/wiki/Precedent). The puzzle picture of “precedent” becomes more complete as one learns about how the court system works when it uses this rule of decision making. Think about it in terms of the judicial system in the Commonwealth of Pennsylvania (PACW). Keep in mind that not all states are Commonwealths and not all states have the exact same judicial system as Pennsylvania. There are only four states that are Commonwealths: Kentucky, Massachusetts, Virginia, and Pennsylvania. Sorry, but it just got complicated again.
Continued on page 10 New Matter | 9
Did You Ever Wonder? Continued from page 9 The jurisdiction of a court controls the entry level for a case, whether it is civil or criminal, going to a court. From the lowest level courts a case progresses to each level of the system until it reaches the State Supreme Court. If the decision in the (PSSC) is appealed it goes to the Federal Court System and, in some cases, can be heard by the (USSC). At each level in the system there can be a decision that is absolutely in keeping with prior precedent of the law of the case. But the appellate court may interpret the facts of the case differently than the lower court. In some instances, the lower appellate courts can decide a case that is totally contrary to a (USSC) decision. But the appellant must take that decision to the next level in order to reverse or overrule the bad decision. So what happened in the two decisions the (USSC) just made? The decision in the New York case is a little easier to explain. There had only been one case concerning the reversal of the New York law that went as high as the (USSC). The (USSC) did not stop the state of New York from requiring its residents to obtain a permit to carry a concealed weapon. The (USSC) merely stopped the state of New York from having a subjective requirement of the need to have the permit that is not required by the Second Amendment to the U.S. Constitution. New York’s law first went into effect on September 1, 1967, (55) years ago. During that time it had been changed or modified multiple times and any challenges to the law were decided in favor of the state. Why wasn’t the law challenged before this? It was. But the appellant(s) lost and did not appeal to the (USSC). The slip opinion for the New York case is (135) pages long. (See https://www.supremecourt.gov/opinions/ slipopinion/20. Click on “Opinions of the Court.” Scroll down to case #54 for the slip opinion.) The irony in this decision is that New York won their position within the state court jurisdiction but lost to the final decision in the (USSC). Additionally, the use of judicial precedent was used by the (USSC) using its own leading decisions in District of Columbia v. Heller, 554 U. S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268; 76 U.S.L.W. 4631, and McDonald v. Chicago, 561 U. S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894; 2010 U.S. LEXIS 5523; 78 U.S.L.W. 4844, to hold that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. The Dobbs case is a lot more complicated. This case hits more than the judicial system, it hits every person in the United States concerning the application of a Constitutional right. What faced the court was something called a “super precedence“ issue concerning the decision in Roe v. Wade. When I tried looking up the definition of a “super precedence” in Black’s Law Dictionary listed above, there was none in that issue. I tried a newer version of Black’s, i.e. the Abridged sixth Edition, 1991, with the same result. Lastly
10 | New Matter
I went back to Wikipedia and found the following: ““ Super stare decisis” is a term used for important precedent that is resistant or immune from being overturned, without regard to whether correctly decided in the first place. It may be viewed as one extreme in a range of precedential power, or alternatively, to express a belief, or a critique of that belief, that some decisions should not be overturned. In 1976, Richard Posner and William Landes coined the term “super-precedent” in an article they wrote about testing theories of precedent by counting citations. Posner and Landes used this term to describe the influential effect of a cited decision. The term “super-precedent” later became associated with [a]{sic} different issue: the difficulty of overturning a decision. In 1992, Rutgers professor Earl Maltz criticized the Supreme Court’s decision in Planned Parenthood v. Casey for endorsing the idea that if one side can take control of the Court on an issue of major national importance (as in Roe v. Wade), that side can protect its position from being reversed “by a kind of super-stare decisis.” The controversial idea that some decisions are virtually immune from being overturned, regardless of whether they were decided correctly in the first place, is the idea to which the term “super-stare decisis” now usually refers. [citation needed] The concept of super-stare decisis (or “super-precedent”) was mentioned during the hearings of Chief Justice John Roberts and Justice Samuel Alito before the Senate Judiciary Committee. Prior to the commencement of the Roberts hearings, the committee chair, Senator Arlen Specter of Pennsylvania, wrote an op-ed in The New York Times referring to Roe as a “super-precedent”. He revisited this concept during the hearings, but neither Roberts nor Alito endorsed the term or the concept.“ (Wikipedia on “precedent” as of June 25, 2022, https://en.wikipedia.org/ wiki/Precedent). For those who ascribe to the “super precedent” status of a decision, one may look at the number of cases that Roe had as of June 25, 2022. This is more than likely off by an unknown amount due to the research being done on the commencement date of writing. It is: ““Cited by“ 3,934”, “Federal Courts 2,634”, including “U.S. Supreme Court 140”, “State Courts 1,931”, “Unreported 775”, and “Reported 3,687”. (See Lexis check on Roe case conducted by author on June 25, 2022). For those who look at the variety of other possibilities, it takes a more difficult explanation. “Abortion is nothing new. It has been addressed by lawmakers for centuries, and the fundamental moral question that it poses is ageless.” (Slip op. p. 53, Dobbs v. Jackson Women’s Health Org., Supreme Court of the United States, December 1, 2021, Argued; June 24, 2022, Decided, No. 19-1392. 2022 U.S. LEXIS 3057).
Continued on page 12
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Did You Ever Wonder? Continued from page 11 Popularity in the decision of the court is not sufficient to maintain that decision forever. History may play a part but is not always sufficient enough to decide a case. The court lists multiple issues that are used by our citizens. But the court tells us the five factors they used: “ Our cases have attempted to provide a framework for deciding when a precedent should be overruled, and they have identified factors that should be considered in making such a decision. Janus v. State, County, and Municipal Employees, 585 U. S. ___, ___-___ (2018) (slip op., at 34-35); Ramos v. Louisiana, 590 U. S. ___, ___-___ (2020) (KAVANAUGH, J., concurring in part) (slip op., at 7-9).
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I n this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.” (Slip op. page 63, Dobbs v. Jackson Women’s Health Org., Supreme Court of the United States, December 1, 2021, Argued; June 24, 2022, Decided, No. 19-1392. 2022 U.S. LEXIS 3057) The court also justified its decision by pointing out that this is not the first major decision that overruled a prior (USSC) decision. The court listed: “ Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown v. Board of Education, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Court repudiated the “separate but equal” doctrine, which had allowed States to maintain racially segregated schools and other facilities. Id., at 488, 74 S. Ct. 686, 98 L. Ed. 873 (internal quotation marks omitted). In so doing, the Court overruled the infamous decision in Plessy v. Ferguson, 163 U. S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), along with six other Supreme Court precedents that had applied the separate-but-equal rule. See Brown, 347 U. S., at 491, 74 S. Ct. 686, 98 L. Ed. 873.” (Slip op. pp. 62-63, Dobbs v. Jackson Women’s Health Org., Supreme Court of the United States, December 1, 2021, Argued; June 24, 2022, Decided, No. 19-1392. 2022 U.S. LEXIS 3057. The list contains additional cases changed by the court. See pp. 63-64; Footnote 48 contains 1 1/4 page list of cases). The final decision: “ We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.” (Slip op. p. 96, Dobbs v. Jackson Women’s Health Org., Supreme Court of the United States, December 1, 2021, Argued; June 24, 2022, Decided, No. 19-1392. 2022 U.S. LEXIS 3057.)
12 | New Matter
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CCBA Feature
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Chester County Bar Foundation
2022 Bar Sail The Chester County Bar Association Bar Sail has been a tradition for over 60 years! On June 16th, our members continued this fun tradition by sailing the Chesapeake and eating a great crab dinner in Baltimore, Maryland!
New Matter | 13
CCBA Feature
Chester County Bar Foundation
2022 Key Gala We had an incredible time at the 8th Annual Chester County Bar Foundation Key Gala. Each year, every penny that we raise is donated to local Chester County Charities! This year was record-breaking! It not only broke the record for the most money that the CCBF has ever raised, but EXCEEDED it, raising a grand total of $87,000!!! The Chester County Bar Foundation wants to extend a sincere THANK YOU to our record-breaking number of sponsors who made this Key Gala a successful event far before we even showed up to auction! Special Thank You to our presenting sponsor Key Bank. Thank you for the best one yet!
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CCBA Feature
www.chescobar.org
Judge Paula Ott Honored by Law Firm Gawthrop Greenwood with Piece of Pennsylvania History A treasured piece of Pennsylvania history now belongs to a former Gawthrop Greenwood attorney who went on to make her own history as a Pennsylvania Superior Court Judge as well as Chester County President Judge. The law firm Gawthrop Greenwood and partner Kevin Holleran were pleased to present Judge Paula Ott with a Pennsylvania Railroad club car chair at Gawthrop Greenwood’s offices in West Chester earlier this month, in honor of her contributions to the legal field as well as her work to advance the role of women in the law. The firm once showcased 10 of these chairs, believed to have been acquired by the father of Gawthrop founder W. Edward Greenwood, Jr., Esquire, when a Pennsylvania Railroad car was discarded decades ago at a scrap yard located next to the old Lukens Steel Company in Coatesville, PA. Pictured clockwise are Judge Paula Ott with her former Gawthrop colleague and mentor John Halsted seated in the historic chair; the Pennsylvania Railroad club car chair with a photo of W. Edward
Greenwood, Jr; Judge Ott with Gawthrop partners Stacey Fuller, John Rafferty, Walter Eells and Kevin Holleran. Since its founding in 1904, Gawthrop Greenwood has produced seven judges, 11 presidents of the Chester County Bar Association and numerous high-profile lawyers whose commitment to unparalleled service has long distinguished the firm. The first female judge in Chester County came from Gawthrop Greenwood, as did two judges who went on to the Superior Court of Pennsylvania, another who became a Federal District Court Judge and three who have served as President Judge of Chester County.
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Save Our Environment
The “Major Questions Doctrine” is Formally Named and EPA’s Regulatory Authority under the Clean Air Act is Curtailed: West Virginia, et al. v. EPA, et al. By John R. Embick, Esquire John R. Embick, PLLC Chair of the CCBA Environmental Law Section
I
n one of the more significant decisions of the October 2021 Term of the U.S. Supreme Court, SCOTUS formally gave name to the Major Questions Doctrine, and used it to prune the regulatory authority of the U.S. Environmental Protection Agency (“EPA”) to address how carbon emissions are reduced from fossil fuel electric generating facilities. The case was West Virginia, et al. v. EPA, et al., 597 U.S. ____(June 30, 2022), and was the last major case decided in the term. Chief Justice Roberts authored the opinion and was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justice Kagan wrote a dissent and was joined by Justices Breyer and Sotomayor. So, West Virginia v. EPA is another 6 to 3 decision, with all the “conservative” justices in the majority, and all the “liberal” justices in the minority. The case turns on the meaning of section 111(d) of the Clean Air Act (“CAA”), 42 U.S.C. §7411(d). The CAA was promulgated in 1970, and has since been amended, in part. Section 111 is known as the New Source Performance Standard section of the CAA, and provides authority to EPA to regulate emissions from new sources of pollution. Section 111(d) also provides EPA with authority to regulate emissions from existing sources of air pollution, if those pollutants have not been regulated under CAA Section 108 (ambient air quality standards), or CAA Section 112 (hazardous air pollutants). In CAA Section 111, EPA was given the authority to adopt standards of performance for emissions that reflect “the degree of emission limitation achievable through the application of the best system of emission reduction … [that] has been adequately demonstrated.” 42 U.S.C. §§7411(a), (b)(1) (emphasis supplied).
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In 2015, the Obama administration enacted the regulatory program known as the Clean Power Plan (“CPP”), which established limits on carbon pollution from electric generating facilities in the United States. No serious dispute exists over the fact that the electric generating industry is a major emitter of carbon into the atmosphere. The CPP also mandated emission reductions by shifting the generation of electricity from fossil fuels (e.g., coal) to renewable energy sources of electricity, among other things. This “system” of emission reduction was named “generation-shifting,” and was challenged by many states and the coal industry, as beyond the authority of EPA. These challenges were filed in the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”). SCOTUS issued a stay of the CPP, while the D.C. Circuit deliberated. After the election of President Trump in 2016, EPA announced that it intended to reconsider the CPP. The D.C. Circuit dismissed the case. The Trump administration ultimately repealed the CPP and enacted an alternative rule, named the Affordable Clean Energy Rule (“ACE Rule”). The ACE Rule was then challenged before the D.C. Circuit, which vacated the repeal of the CPP, and also vacated the ACE Rule, and remanded the case to EPA. However, a number of entities appealed the D.C. Circuit’s vacation of the ACE Rule. With the election of President Biden in 2020, EPA signaled that it would again initiate rule-making proceedings aimed at controlling power plant emissions. A new EPA rule has not been issued (and EPA as a result of the West Virginia v. EPA ruling likely will not be able to propose a “system” of emission control that involves “generation-shifting”). EPA has other administrative tools to address this issue, but they may not be as effective as the “generation-shifting” approach. So, given the procedural posture (CPP stayed, ACE Rule vacated, and EPA considering a new rule), SCOTUS did not have to review this issue, but decided to anyway (because the SCOTUS majority felt the agency action complained of was likely to be repeated).
www.chescobar.org There seems to be no serious dispute (at least among most scientists), that anthropomorphic climate change is a serious, existential problem, and that expeditious, effective measures must be employed to reduce carbon emissions. There is also no serious dispute that the CPP would be very expensive to implement, and that the agency action would also essentially pick some big winners and losers. Some of the big losers would be the coal industry and coal producing states, and some of the big winners would be natural gas producers and the alternative energy industry. In the majority opinion, Chief Justice Roberts analyzes the statutory language of CAA Section 111(d), and concluded that the authority provided by Section 111(d) had been little used in the past, and was vague or ambiguous regarding what types of measures could constitute the “best system of emission reduction … that has been adequately demonstrated.” 42 U.S.C. 7411(a) (1) (emphasis supplied). EPA argued that the CPP approach was a “system,” and EPA’s interpretation should be given deference under the Chevron Doctrine (judicial deference to agency interpretation of statutes and rules which the agency administers), Chevron v. NRDC, Inc., 467 U.S. 837 (1984). However, Chief Justice Roberts made no direct mention of the “Chevron Doctrine” in the majority opinion, and instead gave further explication of what the majority has formally labeled as the “Major Questions Doctrine.” onetheless, our precedent teaches that there N are “extraordinary cases” that call for a different approach—cases in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority. Slip op. at 17 (citations omitted). Chief Justice Roberts pointed to precedents which he asserted applied the “Major Questions Doctrine, ” but as Justice Kagan’s dissent points out, this was the first time SCOTUS had given the doctrine a name: The Court has never even used the term “major questions doctrine” before. Dissenting Slip Op. at 15. Justice Kagan also noted: It announces the arrival of the “major questions doctrine,” which replaces normal text-in-context statutory interpretation with some tougher-to-satisfy set of rules. Ante, at 16– 31. Apparently, there is now a two-step inquiry. First, a court must decide, by looking
at some panoply of factors, whether agency action presents an “extraordinary case.” Ante, at 17; see ante, at 20–28. If it does, the agency “must point to clear congressional authorization for the power it claims,” someplace over and above the normal statutory basis we require. Dissenting Slip Op. at 15. In a concurring opinion, Justice Gorsuch attempted to explain more fully the cases which would trigger the “Major Decisions Doctrine” and the standards which would be applied to determine the applicability of the doctrine. Unfortunately, the Gorsuch concurrence was joined only by Justice Alito, so the Gorsuch concurring opinion does not have much authority (but at least it is something). So, unless Congress gives EPA additional clear and specific authority to mandate “generation-shifting,” EPA must use different tools under the CAA to achieve the level of carbon emission reductions it thinks are necessary. Justice Kagan begins her dissent with these words: Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to “the most pressing environmental challenge of our time.” Massachusetts v. EPA, 549 U. S. 497, 505 (2007). Dissenting Slip Op. at 1. Justice Kagan ends her dissenting opinion with these words: he subject matter of the regulation here makes the T Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb powerplants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent. Dissenting Slip Op. at 32-33. The “Major Questions Doctrine” is ascendant, and the “Chevron Doctrine” is descendant. If your job is statutory drafting, I wonder how the “Major Questions Doctrine” will be addressed?
New Matter | 17
From the Desk of the Executive Director
www.chescobar.org
I
hope you are having a wonderful Summer! Whether you love the heat (or hate anything over 85 degrees like me) this season is known for being a time of enjoyment. Whether it is outdoor events, vacations, long weekends, time at the beach (or shore for all my born and raised Southeast PA people), Summer is a time for a little bit of respite from this crazy lifestyle of ours. With that in mind, we will do our best here at the Chester County Bar Association not to bother you too much until after Labor Day! We will still have a smattering of CLEs, and one or two events, but ultimately, we will be in full on planning mode so we can hit the ground running on September 6th with a packed Fall Schedule. One thing we will be doing at the height of Summer is a Chester County Bar Foundation night at the Philadelphia Phillies Game. The Phillies were kind enough to donate 100 tickets in the 109 section right off the first base line, so that we could use them to raise some money for the good works of the Bar Foundation. For just $25 per ticket, you can catch this great 6:05 P.M. game with your friends and family while still enjoying the collegiality with your fellow Bar members. If you would like to attend, you can buy your tickets via our website or call the office, and someone can walk you through your purchase. Please keep in mind we only have 100 tickets, so it is first come, first served. Speaking of the Bar Foundation, I want to thank everyone who contributed to our Key Gala, which was held in May. The night was entirely about supporting our Foundation as it seeks to raise money to support local charities like the Domestic Violence Center of Chester County, Legal Aid, and the Crime Victims’ Center of Chester County just to name a few. Through our members’ generosity and the record-setting support of our Sponsor Partners, we raised the most money in the history of this event with a gross take of over $87,000! Now, back to looking at what I hope will be a beautiful and eventful Fall for our Association. Not only do we hope to have plenty of interesting CLEs for you in September, October, and November, but we will also have a plethora of exciting (and mainly free) happy hours during those months as well. We will be celebrating Membership Appreciation Week in October, as well as Pro Bono Week. Plus, we are planning our best Veteran’s Day Ceremony yet for Friday, November 11th, so mark your calendars now. As you may have noticed already from the cover of this magazine, the big crowning jewel of our Fall Season will be our Bench Bar Conference in Alexandria, Virginia. I
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Chester County Bar Association Executive Director Matt Holliday
know hearing Virginia can sound scary as you may be thinking you are in for a four-hour car ride. I assure you; the President and I have gone down twice to check things out and both times we have made it from West Chester to Alexandria in under two and a half hours. This beautiful “city” stole my heart within moments of arriving. Picture a larger, more historic West Chester right on the Potomac River with amazing views (including of the United States Capitol Dome), and tons of awesome restaurants, bars, and shops. We have worked very hard to make this one of the most affordable Bench Bars to attend in a long time, so it is my hope that you will make every effort to join us September 29th through October 1st for this keystone event. 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.
Continued on page 20 New Matter | 19
Continued from page 19
Bus Trip to Mount Vernon Bus Trip to Mount Vernon This tour is on a first come, first served basis This ONLY tour is50 onTICKETS a first come, first served basis ARE AVAILABLE
Your guide to ALL THINGS Fall Bench Bar:
FOR TOUR–REGISTER ONLY 50 THIS TICKETS ARE AVAILABLE IMMEDIATELY SO YOU DO NOT MISS OUT! FOR THIS TOUR–REGISTER IMMEDIATELY SO YOU DO NOT MISS OUT!
This year we have an exciting CCBAsponsored event planned! Follow each step below to ensure you don’t miss anything! 1. REGISTER yourself (and your spouse/ guest) with the CCBA for the conference. 2. BOOK YOUR HOTEL ROOM! For AMAZING RATES, make sure you use the booking link on the CCBA website!
*THIS TOUR IS HOSTED I LHLOC MD E * T H I S T O U& R W IS SO TE N O A D D I T I O& NA LI C OS W LL CTO T MO E NO ADDITIONAL COST TO
BY THE CCBA AY T THE CCBA B O AU T R MEMBERS* OUR MEMBERS*
3. The CCBA is sponsoring a *FREE* bus trip to Mt. Vernon. We can only take 50 people and you do not want to miss out! Interested? Check YES during your conference registration! 4. Mt. Vernon not your thing?! Visit the CCBA website for a HUGE list of available public tours. 5. Not interested in a tour? Would you rather golf? We included a link on the CCBS website so you can schedule a tee time! 6. Make sure you check out the Conference Itinerary for a glimpse of the CLE speakers and event times!
Below are just a few locations that are available for public tours during your free time on Friday, September 30th: ARLINGTON NATIONAL CEMETERY (6.7 MILES FROM THE HOTEL) THE PENTAGON (5.9 MILES FROM THE HOTEL) U.S. CAPITOL VISITOR CENTER (3.4 MILES FROM THE HOTEL) A full list of available tours with clickable links to each of their respective websites can be found on the CCBA Fall Bench Bar website. Please note that you must be registered (if required) and provide your own transportion if you plan to attend any of these tours.
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YOUR HOTEL RESERVATION D U E T O A N U N AMAKE V A ILABILITY OF FOR THE CCBA FALL BENCH BAR C O U R S E S T H A T C A CONFERENCE! N HOLD A SHOTGUN MAKE YOUR HOTEL RES ER VA T I O NOptions: FOR THE Room Rates &H Upgrade S TCA R T G O L F O U T I N G , T E C C night) C B A F A L L B E N C H BStandard A R Room: C O$159 N (per FE R EB NA C EW ! ILL Balcony Room: $189 (per night) N O RTO OBME RA B L E T O C prices O Odo R IN E AN *These not D include feesA andT taxes* ATES & UPGRADE OPTIONS: Make sure you book your hotel room using the CCBA’s ND AR DURT OION MG : $custom 1 5H 9 booking (P Elink R Nthe I GR H .Tor)byIcaling O F F ISBCTAAILA L O T I S Y E A F the YOU on website C O N Y R O O M : $ 1hotel 8 9using ( Pthe Ename R N IG H T )County Bar block “Chester * PR L DE FE D O TA AT H REES EI N TIEC ERSEDSOTNEODT II N NCAssociation.” GUO LF I ENSGA,N Y UX ECS *A N As doing so will save you a couple hundred dollars per night! MO A KO EK S UT RE Y OA U T B OE OA K S YO R HO TO EL S IR NG B EE TU Pspecial O T MisRavailable AO O CMfor! ;theUO TRY The CCBA rate dates T H E C C B A ' S C U S T O M B O O K I N G L I N K O N T H Eof - October 4 , 2022; if you are interested WU E BT S IV T EI;RO Y L C AG LL HE OT IN O TRUBA OI N L GFSeptember ITN G 25HA TE LTAONPD UGSO LGF I N in visiting Alexandria early or extending your stay for a THE NAME BLOCK "CHE TER COUNTY BAR bitS longer. N A T I O N A L AGRSBOOWRI .L L A S S O C I A T I O N " A S D OH IN
SAVE YOU A COUPLE HUNDRED DOLLARS PER NIGHT! THE SPECIAL CCBA RATE IS AVAILABLE FOR THE DUE UNAVAILABILITY D A T ETO S AN OF SEPTEMBER 25 - OCTOBER 4, 2022, IF YOU OF COURSES THAT HOLD A R E I N T E R E SCAN TED IN VISITING ALEXANDRIA EARLY AO SHOT GUN START GOLF OUTING, R EXTENDING YOUR STAY FOR A BIT LONGER.
THE CCBA WILL NOT BE ABLE TO COORDINATE AN OFFICIAL OUTING THIS YEAR.
If you are interested in golfing, you can book tee times at East Potomac; or try virtual golfing at Top Golf at National Harbor. Continued on page 22 New Matter | 21
Continued from page 21
T H URSD A Y
2022 Fall Bench Bar
S E P TE MB ER 2 9TH
2:00 P.M. - 4:30 P.M. 4:30 P.M. - 5:30 P.M.
REGISTRATION TABLE OPENS PLENARY SESSION: (1 ETH)
AVOIDING MALPRACTICE -"IT'S 5:00 O'clock SOMEWHERE" Presented by USI Affinity (Paul Troy from Kane, Pugh, Knoell, Troy, and Kramer) WELCOME COCKTAIL RECEPTION 6:00P.M. - 7:00 P.M. 7:00P.M. - 9:00 P.M. DINNER 9:00P.M. - MIDNIGHT HOSPITALITY SUITE Sponsored by LawPay F R ID A Y
S E P T EM B ER 3 0 T H
7:00A.M. - 8:00 A.M.
BREAKFAST & VENDOR EXPO PLENARY SESSION: (1 SUB)
8:00 A.M. - 9:00 A.M. Presented by: Professor Lisa Wright Bryant, "Imposter Syndrome" 9:00 A.M. - 9:30 A.M. BREAK & VENDOR EXPO
PLENARY SESSION: (1 SUB) 9:30 A.M. - 10:30 A.M. Presented by: Michael Falcone, Chief Counsel, Office of the Principal Legal Advisor of ICE - Office of Homeland Security 10:30 A.M. - 11:00 A.M. BREAK & VENDOR EXPO 11:00 A.M. - 12:00 P.M. PLENARY SESSION: (1 SUB) Presented by: Susan Prosnitz, Deputy Chief Counsel for Regulations & Security Standards (TSA) LUNCH & VENDOR EXPO 12:00 P.M. 12:45 P.M.
MOUNT VERNON BUS LEAVES
1:00 P.M - 7:00 P.M. 7:00 P.M - 8:00 P.M.
FREE TIME BENCH BAR COCKTAIL RECEPTION
DINNER & TRIVIA/DJ 10:00 P.M - MIDNIGHT HOSPITALITY SUITE Sponsored by USI Affinity SA TUR D AY 8:00 P.M - 10:00 P.M.
OC T OB E R 1 ST 7:30 A.M. - 8:45 A.M.
BREAKFAST & VENDOR EXPO
8:45 A.M. - 9:45 A.M.
PLENARY SESSION: JUDGES' FORUM
9:45 A.M. - 10:00 A.M.
(1 SUB)
BREAK & VENDOR EXPO
10:00 A.M. - 11:00 A.M. JUDGES' BREAKOUT SESSION (1 SUB) Civil Court - "Hot Topics" Hon. Edward Griffith & Maria Janoski, Esq. Criminal Court- "Hot Topics" Hon. David Bortner & Curt Norcini, Esq. Family Court - "Hot Topics" Hon. Allison Royer, Esq.; Michael Rovito, Esq & Samantha Cole, Esq. Orphan's Court - "Hot Topics" Hon. Bret Binder & Karyn Seace, Esq.
11:00 A.M.
VENDOR PASSPORT DRAWING CONFERENCE CONCLUDES
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www.chescobar.org
CCBA Feature
COME CELEBRATE AMERICA and Our
Bar Association Veterans on Veterans Day 2022 On Veterans Day, Friday, November 11, 2022, at 3:30 p.m., the Bar Association invites everyone to attend a
patriotic, historic, and inspiring event to honor our Bar Association Veteran members and those who have served our country. The celebration will begin in front of the Historic Chester County Courthouse and will be followed by a reception at the Bar Association. Now, please read on to find out details of this spectacular event. To begin with, our Guest of Honor will be Chief Justice Emeritus Ron Castille. Before serving as the Philadelphia District Attorney and subsequently the Chief Justice of the Pennsylvania Supreme Court, he served as a Marine in Vietnam and as a result of his service, he lost a leg in service to our country. The venue will be patriotically decorated with flags and other fanfare, and West Chester University is providing a marching band ensemble to play patriotic music throughout the event. Veteran Bar Association members will be individually introduced (to the playing of music) at the beginning of the ceremony and will be given a military hat to wear to reflect their branch of service, and as our way of saying “thank you.” During the celebration, a military helicopter flyover is scheduled to take place and hover over the venue to the sounds of patriotic music. Revolutionary War Reenactors have been invited to perform a historical ceremony followed by a musket firing salute. At the conclusion of the event, a reception will be held at the Bar Association and being a Friday late afternoon, this will be a great opportunity for our members to eat, drink and socialize!
Various dignitaries will be invited. We are planning for a great turnout for the best Bar Association Veterans Day celebration in history. While the Bar Association maintains a list of Veteran members, emails will be sent to our membership requesting that they update the list, particularly since military hats will be purchased for our Veterans and each Veteran member will be recognized. If you, your firm, or any other businesses would like to help sponsor the celebration, please contact the Bar Association as the names of sponsors will be prominently listed in the program as well as in other media displays and announcements. The event is anticipated to receive media coverage from a variety of outlets following the issuance of press releases. Finally, if you would like more information about the celebration and ways to support it, please feel free to contact Jamie Goncharoff, our 2022 Veterans Day Coordinator.
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610-696-2937 West Chester Friends School
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New Matter | 23
The Blank Page
Dobbs v. Jackson Women’s Health Organization: The Long-Term Implications By Mark Blank, Jr., Esquire
T
he United States Supreme Court has effectively overruled Roe v. Wade, 410 U.S. 113 (1973) and its progeny, most notably, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). In Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June, 2022), after a brief introduction, the Court held that: “. . . Roe and Casey must be overruled. The Constitution makes no reference [emphasis mine] to abortion, and no such right is implicitly protected by any Constitutional provision, including the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be deeply rooted in the Nation’s history and tradition and ‘implicit in the concept of ordered liberty.’ Washington v. Glucksberg, 521 U.S. 702, 721 (1977) . . .” (Slip Op. 5). Justice Alito, for the Majority, concludes: “ . . . Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Roe and Casey arrogated [sic] that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” (Slip Op. 78-79). Before continuing, I ask the reader to re-read the title of this article, the latter of which is not meant to be political, ideological, philosophical, religious, moral, or otherwise to be construed as an editorial. Nor is it to be interpreted as being critical, in agreement or disagreement with Dobbs or any of its component parts.
The central principle in Dobbs is that there is nothing in the Constitution that would guarantee a right for a woman to obtain an abortion and, by inference, the privilege of a physician to perform one. In overruling Roe and Casey, the Court employs a judicially created set of criteria as its basis for courts to overturn a precedential case, and points 24 | New Matter
to five “factors” that “weigh strongly” in overruling Roe and Casey: (A) the nature of their error; (B) the quality of their reasoning; (C) the workability of rules that they imposed on the country; (D) their disruptive effect on other areas of the law; and (E) the absence of concrete reliance. Dobbs, Slip Op. 43; discussion of application to Roe and Casey, 43-66.1 Now, let us turn to the core of Dobbs, that is, that there is no mention in the Constitution of abortion or any right to it. There is certainly a plethora of SCOTUS decisions that have recognized (as Justice Alito concedes), in one form or another, civil liberties that are not directly stated in the Constitution. Some of these rights include: (1) the right to procreate, Skinner v. Oklahoma, 316, U.S. 535 (1942); (2) the right to be free from involuntary sterilization, id.; (3) the fundamental right to enter into the bonds of matrimony, Loving v. Virginia, 388 U.S. 1 (1967), (4) regardless of the parties’ race, id., or (5) gender, Oberfell v. Hodges, 576 U.S. 644 (2015), or (6) whether the parties are in prison, Turner v. Sofley, 482 U.S. 78 (1987); (7) the right to privacy, Griswald v. Connecticut, 381 U.S. 479 (1965); (8) the liberty to possess, disperse and disseminate birth control literature and birth control devices, Griswald; Eisenstadt v. Baird, 405 U.S. 438 (1972); (9) the privilege of adults to have consensual sexual relations, (10) regardless of gender, Lawrence v. Texas, 539 U.S. 558 (2003); and (11) the liberty for children to attend public schools, Goss v. Lopez, 419 U.S. 565 (1975). These cases and the civil liberties enunciated therein are now vulnerable. Each and every one of those decisions, and the Constitutional principles deduced therein, are subject to scrutiny based on the action taken by the Court in Dobbs. Take privacy, for instance. Katz v. United States, 389 U.S. 397 (1967) was a grand slam. Not only did it reaffirm the right to privacy, the Court held that in certain places there is an expectation of privacy; and any evidence obtained by a warrantless bug in such area (in Katz, a telephone booth)
Mark’s Note: Query: Is this the standard to be utilized in the future by the SCOTUS, the federal and state courts, to determine whether a precedential case, when subject to challenge, should be overruled? (This is a rhetorical question only.)
1
www.chescobar.org would be inadmissible pursuant to the exclusionary rule. Could Katz be overruled? If nothing else, the holding could be limited to telephone booths (even though there are no more telephone booths). And speaking of the devil, where in the devil is there anything in the Constitution that references an exclusionary rule? See: Mapp v. Ohio, 367 U.S. 643 (1961); Weeks v. United States, 232 U.S. 383 (1914). Not only is the Constitution void of any reference to such a principle; but from whence come exceptions thereto, such as the granddaddy of them all, United States v. Leon, 468 U.S. 897 (1984) (the good faith exception)? Could (and should) the entire exclusionary rule be abrogated? If so, there would obviously be no need for any of the exceptions. But if not, maybe the exceptions could be narrowed. For example, Terry v. Ohio, 362 U.S. 1 (1968) requires reasonable suspicion to justify a stop-and-frisk. How about eliminating reasonable from the test, or even allow pat downs without any suspicion at all? Then, perhaps, there would be no need for the search incident to a lawful arrest exception. See: Chimel v. California, 395 U.S. 752 (1969); Harris v. United States, 331 U.S. 145 (1947). Continuing with criminal justice, let us rise to the penthouse. Although there is unquestionably a right to be free from self-incrimination (Amendment V), where in the Constitution is there any reference to police custody and advising a suspect of that privilege and, more specifically, the necessity for a peace officer to apply the magical words: “You have a right to remain silent, anything you say . . . [etc.]”? Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, Justices Harlan, Stewart and White dissented. They argued that admissibility should be determined the old-fashioned way, that is, on a case-bycase basis. So why not overrule Miranda as being overly broad and legislation in disguise?2 The long and the short of it is, not only are precedential cases involving moral and philosophical issues in Dobbs danger, but perhaps others as well. On this point, for instance, Justice Thomas (who, along with Ginni, is having a heyday) appears to be able, willing and ready to reexamine the “actual malice” requirement in defamation suits concerning public officials, New York Times v. Sullivan, 376 U.S. 254 (1964) and public figures, Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Curtis Publishing Company v. Butts, 388 U.S. 130 (1967). “We should not
continue to reflexively apply the policy-driven approach [actual malice] to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures [and public officials] to satisfy an actual malice standard in state-law defamation suits, then neither should we.” McKee v. Cosby, No. 17-1542, Slip Op. 2 (Thomas, J., concurring in the denial of certiorari). As long as we are on the First Amendment, let us look at obscenity. Roth v. United States, 354 U.S. 476 (1957) held that obscenity is not First Amendment protected speech. But where in the Constitution is there any dicta about obscenity or a definition of it? Nevertheless, the Court spent the next sixteen years after Roth grappling with its meaning until it arrived at a definition of it in Miller v. California, 413 U.S. 15 (1973), in which the Court incorporated any previous definitions, but added that a work is obscene if it is without serious literary, artistic, political or scientific value, in view of an average person according to local community standards, Miller.3 Where in the Constitution is there any basis or rationale for Roth and Miller? Where in our Nation’s history, the Fourteenth Amendment or the common law? Could Roth and Miller be overruled? If they are, where are we to go? To the legislators of the states, where abortion law is now headed? Of course, the Court could adopt the absolutist approach of Justices Black and Douglas (not bloody likely). All we need is for a state criminal obscenity statute that creates its own definition of obscenity. A case addressing it would meander its way to the SCOTUS and, zap!; Thomas, Alito and company to the rescue. Roth and Miller overruled and the states take charge. Yippee!4 Never fear, I am almost finished. “But wait, just one more thing,” as Lieutenant Columbo would say, and it goes to the heart of the First: religion in the public schools. In Engel v. Vitale, 370 U.S. 421 (1962) and Abington School District v. Schempp, 374 U.S. 203 (1963), the Court held that conducting religious exercises and the reading of prayers in public schools is a violation of the Establishment Clause. For years after Schempp (and still occasionally), states and localities have attempted to concoct ways to get around the basis of the principle holding, albeit, “separation of church and state.” Are Continued on page 26
In Dobbs, one of the major criticisms of Roe is that the latter legislated. (In fact, it did.) The Majority Opinion in Roe was authored by the great Justice Harry A. Blackmun, his majority assignment having come from his Minnesota Twin Brethren, Chief Justice Burger. And, admittedly, Justice Blackmun, having been counsel to the Mayo Clinic, was able to take judicial notice of facts that nobody else could. 3 Leading up to Miller, the most famous statement on the subject came from Justice Stewart. In concluding that criminal obscenity laws are Constitutionally limited under the First and Fourteenth Amendments to hard core pornography, the Justice hypothesized: “I can’t define it, but I know it when I see it.” Jacobellis v. Ohio, 378 U.S. 184 (1964) (Stewart, J., concurring). Miller was a 5-4 decision, in which Justice Stewart dissented. 4 Today, since there is so much filth, smut, and garbage in all forms of the media, obscenity is hardly an issue, and we are likely to never get a test case. Lucky you, Larry Flynt. 2
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Engel and Schempp in Dobbs’ harm’s way? Maybe: “Put the Bible back in school,” read a sign that I once observed in the Unionville area (before the region became victim to urbanization). Query: Were Engel and Schempp “wrongly decided,” as the Majority claims of Roe and Casey? Justices Harlan, Frankfurter and Jackson were “conservatives” in their own right. Nevertheless, and notwithstanding any dissent lodged or disagreements with the Majority, in subsequent cases they adhered to the precedents that the Court established. Well, not our Four Lads and One Lassie. The Five, by forming a Majority in overruling two precedential cases, are in fact, themselves, establishing a new precedent. Well, this has been fun, fun, fun (Beach Boys, 1964), but now Brothers Four and Sister Sledge took the keys to Roe and Casey away, and it is more than a federal abortion right that they could in the future eliminate, as I have tried to illustrate. “[This could be] the beginning of a long, beautiful friendship.” Rick (Humphrey Bogart) to Louis (Claude Raines), Casablanca, 1942. As for me, “I’m tarred; I think I’ll go home now”. (Forrest Gump, when his “runnin’ days was [sic] over.”)
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GAWTHROP GREENWOOD, PC, a regional law firm with offices in West Chester, PA and Greater Wilmington, DE, is announcing a merger with the Chester County-based law firm Hudson L. Voltz, PC. Effective June 1, 2022, attorneys HUDSON L. VOLTZ and JANET J. SATTERTHWAITE have joined Gawthrop Greenwood’s team of attorneys at their law offices in the heart of downtown West Chester, PA. As a 2022 Lawyer of the Year named by Best Lawyers®, Gawthrop Greenwood attorney STACEY L. FULLER is featured in the “Women in the Law Business Edition” published this month. “Lawyer of the Year” status is awarded to the lawyer who receives the highest peerreviewed feedback evaluated and compiled by Best Lawyers®, the oldest and most respected guide to the legal profession. Only one lawyer per practice area and region achieves this recognition annually. Fuller was named Best Lawyer for Land Using and Zoning Law, as well as Municipal Law for a fifth year in a row. “Women in the Law Business Edition” promotes women’s voices with editorial content written by female contributors focusing largely on their experiences in law, taking monumental leaps in their professions and inspiring future generations. LAMB MCERLANE HAS MERGED WITH GIANNASCOLI & THOMAS, P.C. and added two more locations in Exton & Mount Laurel, NJ, bringing the Firm’s headcount to 47 attorneys. In January, we added our Oxford location. The combined firm will operate under the name of Lamb McErlane PC and we will now have 6 offices in West Chester, Philadelphia, Newtown Square, Oxford, Exton and Mount Laurel, NJ. PROSECUTOR OF THE YEAR: Deputy District Attorney EMILY PROVENCHER.
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CCBA Feature
OPENING DOORS TO LEGACY PHILANTHROPY
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rofessional advisors play a crucial role in propelling legacy philanthropy. The Chester County Community Foundation’s Door Opener Award recognizes professional advisors who support and encourage legacy philanthropy. The Community Foundation is pleased to spotlight David M. Frees, III, Esq., and Kurt Kunsch as this year’s Door Openers. They suggested that Robert H. Erb consider the Community Foundation as a vehicle for his philanthropy, ultimately establishing the Jonas C., Marian D., and Robert H. Erb Charitable Fund. Robert H. Erb joined the Montgomery County Community College (MCCC) faculty in 1970 as a librarian, just six years after the college’s founding. His service to the library continued for 45 years until his retirement in 2015. However, his commitment to MCCC didn’t end there. As a passionate learner and avid steward of his community, Mr. Erb was always looking to improve and learn more each day and he wanted to help MCCC students do the same. “I got to know Mr. Erb quite well after working with him for a number of years,” explains David M. Frees, III, Esq., Mr. Erb’s estate planning attorney. “He used to share stories of times when he stayed late at the library assisting students with their research, listening to their stories, and providing encouragement and advice. In every conversation we had, I could feel the love he had for the college, the students, and his community.” Dave is an estate planning attorney, author, seminar presenter, and internationally known speaker. He is Chairman of the Trust, Estates, and Wealth Preservation section of Unruh Turner Burke & Frees, and co-chairs the Elder Law Solutions section of the firm. His practice focuses on planned giving, asset protection, and estate and tax planning and administration. “Mr. Erb was passionate about the community college mission,” continues Dave, “and he wanted MCCC to reflect his diverse community. That is one of the many reasons he continued his partnership with the college as a philanthropist, both during and after his employment. Knowing he already had clear philanthropic intentions,
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David M. Frees, III, Esq.
Kurt Kunsch
my assignment was to steer him in the right direction for the best charitable giving options. We discussed the Chester County Community Foundation a number of times. I went over the advantages of a donor-advised fund at the Foundation. And, given Mr. Erb’s interest in education, he determined a scholarship fund would be the best fit. Mr Erb. wanted the fund to be named after his parents, which is how he came to create the Jonas C., Marian D., and Robert H. Erb Charitable Fund.” Dave is a lifelong friend of Kurt Kunsch, the Senior Vice President and Trust Managing Director for Phoenixville Federal Bank and Trust. According to Kurt, “Dave has been instrumental as a career mentor. He inspired me to get more involved with the Foundation’s mission, and he served as Chair of the Foundation’s Board in 2004.” Kurt has been at the nexus of scores of wealth management and estate planning conversations since joining Phoenixville Federal Bank and Trust in 1996. He has established himself as a leader in the field, with his sound business practices, reputation of integrity and trust, and personal ethos of community service. Kurt’s passion for community involvement started with his father Dick Kunsch, former Vice Chairman/ CEO at Phoenixville Federal Bank and Trust. “My Dad always instilled in us the importance of giving back and donating time or resources to assist others in need,” says Kurt.
www.chescobar.org Phoenixville Federal Bank and Trust is an investment partner of the Jonas C., Marian D., and Robert H. Erb Charitable Fund, through the Community Foundation’s Medallion Partners program. Though he did not know Mr. Erb personally, Kurt says, “I am always very moved by an individual and/or their family’s passion to give back to help those who need it most. The altruistic spirit that exists in our community is inspiring. Several of our clients have charitable funds at the Chester County Community Foundation. True to its mission, the Community Foundation provides a vehicle for those with a charitable interest to connect with nonprofit causes that matter to them both today and in their legacy plans.” The Jonas C., Marian D., and Robert H. Erb Charitable Fund was established at the Chester County Community Foundation because it was the best fit for Mr. Erb’s charitable intentions. The Fund supports education, particularly reading, writing, and speech, through direct scholarships to students or distributions to Montgomery County Community College or similar accredited institutions in Chester County, Montgomery County, and Delaware County. Programs and activities must make a
significant impact on learning enhancement and learning skills. Each year the fund advisors will award grants in ways that uphold Mr. Erb’s vision, cementing his desire to make a lasting impact in his community. Please join the Community Foundation in spotlighting Door Openers David M. Frees, III, Esq., and Kurt Kunsch at the Community Foundation’s Annual Meeting & Legacy Celebration on Monday evening, October 24, 2022 at Uptown! Knauer Performing Arts Center in West Chester. The event is free and open to the public. Questions? Contact: Karen Simmons, President/CEO or Jason Arbacheski, CAP®, Director of Gift Planning and Stewardship, Chester County Community Foundation. 28 West Market Street, West Chester PA 19382 (610) 696-8211 | jason@chescocf.org | www.chescocf.org
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CCBA Feature
Legal Aid of Southeastern PA Celebrates 20+ Years of Service at Fête for Justice! 4 Freedoms, 4 Counties, 4 Justice! Above: Trapeta B. Mayson, 2020-21 Philadelphia Poet Laureate, shares her healing words of verse in a reading of two poems, “In This Season” and “Superhero.” | Photo by Hitched Productions.
By Marion Hoffman Fraley Communications Director Legal Aid of Southeastern PA
and C. Shawn Boehringer, LASP Executive Director, both shared brief remarks. Honorees based primarily in Chester County included:
L
egal Aid of Southeastern PA celebrated 20+ years as a regional civil legal aid provider at the Fête for Justice on May 19. THANK YOU to the Chester County Bar Association, CCBA members, and all sponsors and friends who supported and joined us at Normandy Farm, Blue Bell for this milestone. Keynote Speaker Reuben Jonathan Miller, Sociologist, University of Chicago assistant professor and author of Halfway Home: Race, Punishment and the Afterlife of Mass Incarceration, challenged attendees to consider the disproportionate impact of mass incarceration on Black and Brown people. Trapeta B. Mayson, 2020-21 Philadelphia Poet Laureate, shared healing words of verse, including “In This Season” and “Superhero.” And we celebrated 47 Honorees, whose work collectively paved the way for LASP’s service across 20+ years in Chester, Bucks, Delaware and Montgomery counties. William L. Baldwin, 2020-22 LASP Board President and Delaware County Bar Association Executive Director, 30 | New Matter
•W illiam J. Gallagher, a longtime member of the LASP Board of Directors. He was Board President from 201618, during the Executive Director recruitment search. He is also a member of CCBA’s Pro Bono Committee and Pennsylvania Bar Association’s Legal Services to the Public Committee. •E leonor “Ellie” Glasco, who joined Legal Aid of Chester County in October 1973 as a bilingual Paralegal. She spent her 44-year career advocating for people seeking public benefits. Ellie was key to the Don’t Borrow Trouble campaign in Chester County while working for Community Impact Legal Services. She retired from LASP in April 2017. •R achel Housman, LASP Chester County Managing Attorney from 2001-present. Rachel joined Bucks County Legal Aid Society as Staff Attorney in 1995 and was based in the Bristol Office. She then served as Managing Attorney of the Doylestown Office from 1996-2001 until moving to the West Chester office at the time of the merger.
www.chescobar.org • Carolyn E. Johnson, former Executive Director of Community Impact Legal Services and Legal Aid of Chester County. She has served as longtime LASP Staff Attorney and in June became Interim Supervising Attorney for the Regional Housing Unit. • Wendy C. Leeper, Chief Executive Officer of CCBA and CCBF for almost two decades. Her efforts resulted in significant fundraising campaigns each year by the Chester County Bar Association in support of LASP. • Jeffrey P. Lewis, Board Vice President of Legal Aid of Chester County, helped negotiate the merger and was a member of the first LASP Board of Directors and the first President of Community Impact Legal Services. • John F. McKenna, LASP Board President in 200910 and longtime Board member. Each year, John has played a key role in organizing the annual CCBA attorney fundraising appeal for LASP. He also has promoted pro bono volunteerism within the bar on behalf of LASP clients. John was instrumental in the design of the CCBA’s Access to Justice Initiative which started in 2004; he chaired the CCBA Pro Bono Committee for 18 years. John and MacElree Harvey have sponsored the Trial Run 5K fundraising event since its inception in 2005. • Robert “Sandy” Mulhern, Jr., Past President and longtime member of LASP’s Board of Directors. He also served on the CCBA Board of Directors, Community Impact Legal Services Board, and Legal Aid of Chester County Board. • Deborah Steeves, Staff Attorney since 2000, started in Bristol and later moved to LASP’s West Chester office. She launched a monthly veteran’s clinic in spring 2003 with the Coatesville Veterans Affairs Medical Center and holds regular legal clinics across Chester County. In April 2022, Deb received Supervisor of the Year from Penn Law for her internship program with 17 University of Pennsylvania law students to help clients with SSI applications and Compass applications for public benefits. • Catherine H. Voit has served on the LASP’s Board of Directors since 2012 and on July 1st became its 202224 President. As a member of the CCBA Pro Bono Committee, she helps organize the annual Trial Run 5K which raises funds for LASP. During the pandemic, Cathie presented a virtual CLE on divorce to LASP staff.
Above, from left: Keynote Speaker Reuben Jonathan Miller, Frank Cervone, and LASP Executive Director Shawn Boehringer. Photo by Hitched Productions.
The complete list of Honorees (posthumous Honorees are indicated by an *): National Champions: U.S. Rep. Mary Gay Scanlon and U.S. Rep. Brian Fitzpatrick, Co-Chairs, Congressional Access to Legal Aid Caucus. Founders: Dean P. Arthur, Ballard Spahr LLP, Ronald R. Bolig, William J. Carlin, Sr.*, Elizabeth Wood Fritsch, William J. Gallagher, Hon. Isaac S. Garb*, Catherine Herman, Carolyn E. Johnson, John Knox*, Mark Levin, Jeffrey P. Lewis, Joseph P. Lynch, Mitchell W. Miller*, Robert “Sandy” Mulhern, Jr., Elizabeth Price*, Louis S. Rulli, Mark Schwartz, William Shimer, Harvey F. Strauss, Michelle R. Terry and Donald J. Weiss. Sustainers: Judith Algeo, William L. Baldwin, Mardi Busanus, Edward Danelski, Cary L. Flitter, Jean Gauger, Eleonor “Ellie” Glasco, Hon. Stewart J. Greenleaf*, Nanci Hoover, Rachel Houseman, Maryjane B. Kelley*, Wendy C. Leeper, Patricia “Pat” MacCorkle, John F. McKenna, Nancy R. Paul, Randi Riefner, Susan Rizzardi, June E. Schrader*, Deborah Steeves, Susan Strong, Paul Troy, Karen Tyler and Catherine H. Voit. Please visit lasp.org/fete for links to Flickr photo albums with Fête photos and individual bios for each Honoree, and links to LASP’s YouTube page including several Fête videos.
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CCBA Feature Continued from page 31
Above: Catherine Voit, President of the 2022-24 Legal Aid of Southeastern PA Board of Directors, was among 47 Honorees recognized at the Fête for Justice. | Photo by Hitched Productions.
Harvey recalled the two years of negotiations between the four counties, facilitated by consultant Gerry Singsen, formerly of Legal Services Corp.; pro bono assistance from Ballard Spahr LLP; and mediation help from Louis Rulli of the University of Pennsylvania. “It was a long, involved process,” Harvey said. “We were a little reticent about the idea of merger, but we fought through the process. We had a lot of resources, a lot of meetings, and as you all know, we eventually went to mediation led by Lou. After two years, we finally decided to merge, and looking back, I think it was an extraordinary process, draining and politically charged at times, but we wound up with a really good merger of four counties, and now we are a middle-sized program with quite a few resources, and great staff because we were able to keep most of the staff from the four smaller programs. We were pretty enthusiastic about the fact that we were going to be able to do not only what we’d always done but also get into some new areas. I always thought ours was one of the most successful in the country.” Thank you again from LASP to the Chester County Bar Association and members for your support. Though our celebration has ended, LASP’s work continues!
Former executive directors’ reflections on merging 4 county programs into LASP In early May, Executive Director C. Shawn Boehringer interviewed LASP’s founding Co-Executive Directors, Harvey F. Strauss and Elizabeth Wood Fritsch, on the challenges of merging four county programs to form Legal Aid of Southeastern PA. Prior to LASP’s founding on Jan. 1, 2001, individual county programs in Bucks, Chester, Delaware and Montgomery counties had strong, long-standing civil legal aid programs, but federal and state programs mandated the merger. Liz and Harvey both recalled it as a challenging time. “Our greatest fear was that the County Bar Associations would not support a regional program, and fortunately, that turned out to be an unfounded fear,” Liz reflected. “Our associations did support the merger and really made it successful.”
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CCBA Feature
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Alternative Payment Methods:
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he days of paying by cash or check are quickly disappearing. Thanks to innovations in digital technology, today’s consumers can pay for goods and services using a wide variety of payment methods, including credit cards, digital wallets, contactless methods, and more. However, many law firms today are slow to adapt to modern payment trends and are still only accepting some of the oldest and most traditional payment types. Here, we highlight a few important reasons why your firm should accept multiple payment methods. Meet your clients’ modern billing expectations It's becoming increasingly rare to find a business that does not accept modern online payment options. And when today’s consumers encounter a professional service provider that doesn’t offer these options, they will often take their business elsewhere. Therefore, it’s essential to offer the most modern payment options to your clients if you don’t wish to lose them to one of your competitors. Gain a competitive advantage Conversely, if most of your competitors are still clinging to traditional forms of payment, you can make your firm far more appealing by offering alternative payment methods. Adopt the latest and most popular payment options and make it well known your firm accepts them for your services. Then, when clients in your area are searching for a law firm to take their case, yours will be in a much better position to be the first they reach out to. Foster more trust in your clients Offering more payment options shows your commitment to providing an exceptional client experience. When clients notice they have numerous choices available to them, they will see your firm as professional and accommodating. Should one payment method not work for any reason, they’ll always have another to fall back on. You can reinforce this notion by maintaining PCI compliance every year and making it clear you take every precaution to keep their payment data safe.
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Boost your cash flow Many traditional payment methods are slow-moving, often taking several days to be deposited and settled. If your firm is only relying on one or two methods of getting paid, you run the risk of significantly kneecapping the speed of your cash flow. However, if your firm has more payment options, you can process transactions and receive deposits at a much faster rate—without preventing your clients from paying with more traditional methods if they prefer to. Plus, the best online payment solutions will be able to track different payment options, so you’ll always know the status of your cash flow. Increase your chances of getting paid When you allow clients to choose from multiple payment methods, it helps ensure your bills are paid on time (or even paid at all). If clients can pay your bill the way they want to, there’s a good chance they’ll pay in the first place. You can even take advantage of automated payment options that all but guarantee on-time payments. Ultimately, firms that can offer alternative payment methods position themselves as much more client-centric by keeping the needs of their clients top of mind from the beginning of the case to the end. The more you can be mindful of your clients’ needs, the more likely they are to become repeat clients (and recommend your services to others). To learn more about LawPay and our commitment to supporting your firm’s success, visit lawpay.com/chescobar.
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Fredda Maddox
The Sheriff of Chester County | FMaddox@chescobar.org What is your favorite way to spend your free time? Many evenings and weekends, I’m at charitable or volunteer events.
Who is the person you are most interested in meeting? Since I can’t meet Ruth Bader Ginsburg, I’d love to meet Judge Kitanji Brown Jackson. What was the last book you read? Finding Me: A Memoire by Viola Davis.
Where do you live? I reside in East Goshen Township. What was your first job? When I was a teen, I was a camp counsellor for the Department of Recreation.
What are you most passionate about? The protection of children who have gotten the short end of the stick in life.
What is your favorite TV Show? I seldom watch TV, but I just watched the miniseries, Dopesick. What goals do you still
What word best describes you? Tenacious. Where would we find you on a Saturday afternoon? I’ll be walking a trail with Mr. Bailey, my golden doodle. In spring, you might find me on the driving range.
What is your favorite vacation destination? The beach! What is your favorite food? Fresh seafood, including sushi.
have that you have not achieved yet? More travel abroad – Rome, Egypt, Israel, and many other places.
What is a little-known fact about you? I was commencement speaker for my graduating cadet class at the PA State Police Academy in Hershey. What would you be if you were not a lawyer? An airplane pilot or archeologist. What is your favorite website? YouTube. What is something people would be surprised to hear about you? I was an undercover narcotics agent in the “Badlands” of Philadelphia. What is your favorite thing about the bar association? The Bar Association’s listserv, conferences, and annual meeting give opportunities to connect with various lawyers in different disciplines in Chester County.
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