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New Matter

CCBA Officers

Donald B. Lynn, Jr., President

James D. Doyle, Vice President

Curt Norcini, Treasurer

Robert Burke, Secretary

New Matter Committee

Charles T. DeTulleo, Editor Emeritus

Maria Janoski, Editor

Rami Bishay

Mark Blank, Jr.

Jonathan R. Long

Shannon McDonald

John McKenna

Mary Wade Myers

Sara Planthaber

Karyn L. Seace

Scott Slomowitz

Bill Wilson

CCBA Staff

Greg Nardi Executive Director

Melissa Willson 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

are for general information only and are not intended to provide specific

or other advice or recommendations for any individuals. The placement of paid advertisements does not imply endorsement by the Chester County Bar Association.

FEATURES

Cover photo taken by Jonathan R. Long, Esquire

President

Chester County Bar Association

My year as President of our great association is quickly coming to a close. It has been an honor to serve as President this past year. In my final writing, I wanted to be sure to thank our excellent staff. We are lucky to have each one of them, and together, I witnessed first hand what a well-oiled machine they are. It has been a great experience serving in this role, and I know that we are in good shape when the past presidents pass the gavel to our next President, James D. Doyle, who will lead our group in 2025.

Just recently, we wrapped up a fabulous Bench Bar Conference that was held at the Hotel Hershey from September 26 through September 28th. The festivities started with the Past President’s dinner on Wednesday night. I was very impressed that almost 25 past presidents were in attendance. Kevin Holleran, the longest standing Past President in attendance (Kevin was President in 1992), was quick to remind those willing to listen that he wasn’t the oldest Past President in attendance. According to Kevin that honor belonged to the Past President from 1998, Tony

Morris. It was a fun evening. I am honored to be the newest member of this club.

The conference actually began on Thursday and while I don’t think that anyone saw the sun shining during the conference, the weather didn’t diminish the fun and camaraderie that all attendees enjoyed. Legal Quizzo kicked off the conference and kudos to Lauren Nehra, who did a fabulous job putting that together. On Friday, we enjoyed a very informative and overwhelming (somewhat scary) presentation by David Frees about AI. But the highlight had to have been Judge’s Jeopardy, where three teams of Judges battled wits on such categories as CCBA history, Orphans’ Court, and Chester County history. Thank you to our sponsors, and to everyone that attended.

Additionally, Member Appreciation Week was a big success and capped off with a celebratory Happy Hour at VK Brewing in Exton (home of the old Ship Inn). The YLD Quizzo event is always a fun time and packed the house at Wrong Crowd Brewery. Before the end of the year, we still have some great events coming up, capped by the Annual Meeting and Member’s Holiday Reception.

Serving as President of the Chester County Bar Association has been a great experience. I am deeply thankful for the opportunity to work with such talented and dedicated professionals. We have a very strong staff in place, and many impressive and dedicated members who run sections,

Don Lynn, Esquire

Bar Foundation Key Gala at the Brandywine Museum of Art

Spring Naturalization Ceremony

Presidents DINNER

Honoring...

2024 President, Donald B. Lynn, Jr., Esquire

January 17, 2025 at 6:30pm

LOCH AERIE MANSION MALVERN

and committees organizing meetings and CLE events. We provide and support numerous opportunities for socialization, education, and charitable endeavors. I am proud to have had this opportunity and I thank everyone for all of their efforts. By the time you read this, I am hopeful that we all celebrated the Phillies’ World Series Win, the Eagles’ amazing winning streak on the road to the Super Bowl, World Peace, and the end of the hateful political advertisements. ’While my term is coming to an end, I remain committed to supporting the association in every way I can. I encourage all of you to stay engaged, participate in our programs, and contribute in your own way to the continued success of this association. Enjoy the holidays!

Donald Lynn with Bench Bar Committee Co-Chair, Andrea Pettine

Christmas in July Happy Hour

Reentry SIMULATION

OBy Nathan M. Schenker, Chief Public Defender

n Tuesday, September 24th, I had the opportunity to participate in a reentry from prison simulation presented by the Chester County Reentry Coalition in conjunction with West Chester University. This was the first event of the Coalition.

The goal of the simulation was to give participants a firsthand experience of the challenges faced by those released from incarceration and trying to reintegrate successfully back into society. In one hour, divided into fifteen-minute intervals, the participants experienced the first month of parole for a former prisoner trying to reenter the community.

The program was put together and run with the invaluable assistance of Cyndi Zuidema of the United States Attorney’s Office, Eastern District of Pennsylvania,

which has previously organized similar events. The format could be described as a very serious form of the game Monopoly. Participants had to travel to “stations” where their fate would be decided by an action card at that station. Three basics were, that you had to present three forms of identification at each station, that there would be a fee, and that you would have to provide a transportation ticket.

The participants represented a broad cross section of Chester County, including County departments, social service agencies, faith-based groups, and college students. Volunteers took on the roles of either the reentrants themselves or as individuals in the many agencies charged with providing services to newly released prisoners.

Over thirty volunteers were assigned to fourteen stations where reentrants had to interact. These included tables for State Identification, Probation, Courts, Employment, Food Shopping, Rentals, Public Assistance, Substance Testing, a Transportation Center, Jail and even a Pawn Shop and Blood Bank. Roughly ninety participants became reentrants.

After some preliminary remarks and instructions, the serious task of reentry began. I participated as a reentrant, and our District Attorney, who had done a previous simulation, was a facilitator.

Each reentrant received an envelope with materials and an identity. My identity was “Lilly.” I had spent 25 years in prison for murder and other crimes, I had a GED and a part time food service job that paid $120.00 per week. I shared an apartment that cost $400 per month with a questionable significant other. My material belongings were $200 cash, two “transportation tickets,” two forms of identification, and a birth certificate or social security card. I also owned a guitar valued at $100. Each participant had a different history and received different materials. Some participants were juveniles, and others had family demands.

We each received a “life card” that set out tasks we had to complete to meet our obligations and reflected our success or failure at each station.

This was my experience:

WEEK ONE:

In week one I was expected to report to my job, submit to a drug screen, participate in drug treatment, and report to probation. I also had to pay my rent for the month and purchase food for the week.

Upon getting my materials, the first thing I noticed was that I did not have the proper identification documents. I had my birth certificate and social security card, but I also needed a state-issued identification. So, I immediately joined the very long line for the identification station. An unscrupulous individual, played by our DA, was selling fake IDs to get out of the line but I avoided the temptation! At the ID station I had to fill out a form, pay a fee from my limited funds and use one of my two transportation tickets. As importantly, I used a substantial amount of my fifteen minutes in the process. Once I had proper identification, I had to then stop to buy more transportation tickets, a task that required that you have a transportation ticket in the first place! My next stop was to secure my job. After using a transportation ticket, filling out another form and paying a fee, I found I was fired for having a positive drug test and had to go to the clinic, if I wanted further employment. After a visit to the clinic paying a fee and using another transportation ticket, I was given the potential for another part time job the following week. That job never materialized. I did successfully report to probation, paying another fee and using another transportation ticket.

By the end of the first week, I had been unsuccessful in buying food, had been unable to pay rent and was evicted, was unable to report for a drug screen or to attend AA. I was now unemployed, using drugs, hungry, homeless, in violation of supervision conditions, and living in a shelter.

Before covering week two, I want to mention two other features of the simulation. Reentrants would be randomly approached by facilitators with a “wildcard,” a task that had to be completed, usually a payment that was overdue. The other feature was a “chance” table. At the chance table you could choose between committing two different crimes, either Drug Delivery or Bank Robbery. When you flipped over the card you either had a payday or went to jail.

WEEK TWO:

Starting out homeless, I tried to pay my rent owed from the previous week by filling out a form for rental assistance. I received the assistance, but the

Continued on page 8

Continued from page 7

payment was rejected and I lost a precious transportation ticket and time in the process. By now, a black market had developed for transportation tickets and one could buy them from other participants at much higher prices. I purchased one to be able to purchase more from the Station. I attended treatment, another transportation ticket, and fee, but was rejected when my card said I was unruly. I underwent a drug screen, a fee and another transportation card, which turned out positive. Quickly the fifteen minutes had elapsed and ended week two.

At the end of week two, I was still living in the shelter, positive for drugs, unable to get treatment, and had now been unable to purchase food for two weeks.

WEEK THREE:

As week three started I was unemployed, hungry, homeless, low on cash and had one transportation ticket. I started the week by visiting the Pawn Shop, another transportation ticket gone. I got $50 for my $100 guitar, after negotiation, but I was able to purchase more transportation tickets on the black market. I purchased $25.00 of food, and passed a drug screen, using

diminishing funds and two more transportation tickets in the process. I reported to probation with a transportation ticket and had a negative drug screen there. By this point, I had given up on trying to get housing and I returned to the shelter.

WEEK FOUR:

As week four began, about thirty reentrants were rounded up and returned to jail for their crimes using the “chance” cards or for buying fake IDs in the earlier

weeks. I started the week unemployed, homeless, with little money and few transportation tickets, but at least not back in jail. I tried to sell blood. They took my transportation ticket but refused to let me sell because of a new tattoo. I then paid a fee and a transportation ticket for treatment but was turned away for being five minutes late. I tried to attend AA and sacrificed a transportation ticket only to be turned away for being under the influence. By this point, I was desperate enough to consider committing a new crime. I went to the chance station and was rewarded with a successful bank robbery. Using that money and buying and using more transportation tickets, I purchased food and paid $100.00 for child support from a wildcard. At that point, still homeless and unemployed, the last period ended. While written in an article this may sound like a game. Be assured that this was taken very seriously. In the crowded room you could sense the stress and frustration as reentrants waited on long lines, were disappointed by the persons providing services, tired of showing identification and needing and using transportation tickets, and generally struggling to try to comply with the required tasks and survive.

In a debrief session after the simulation, many challenges and frustrations were expressed, and we learned that the impacts we experienced are reflected in national statistics. Also, what occurred during the simulation rings true when compared to my experience in practicing criminal defense, particularly for the indigent population.

Overall, the simulation was a unique and eye-opening experience, and one that is particularly useful for those in the criminal justice system who exercise control over the conditions imposed upon our citizens reentering society after incarceration. Programs like this can and should inform future decisions about incarceration and reentry.

Participating in the simulation brought home the fact that, even with best efforts, the tasks faced when reentering the community can prove overwhelming, and that help, understanding, compassion and support is needed. Providing that is the goal of the Reentry Coalition.

It is the goal of groups like the Reentry Coalition to provide that help.

TBy Mark Blank, Jr., Esquire

The Due Process Revolution and the Counter-Revolution:

The Undoing of Due Process?

he duration of the Warren Court (Earl Warren (18911974), Chief Justice of the United States, 1953-1969), and for a short time thereafter, has been affectionately referred to as the Due Process Revolution. The era gradually came to a close following the appointment by President Nixon of a Chief Justice and three Associate Justices: Warren E. Burger (Chief Justice, June 23, 1969); Harry A. Blackmun (June 9, 1970); Lewis F. Powell (January 7, 1972); and William H. Rehnquist (January 7, 1972).

The “undoing” of Due Process, albeit the Due Process “counter-revolution,” has been in the making for decades. Before addressing this somewhat sensitive subject, let us take a glance at some of the famous SCOTUS cases that occurred throughout that Revolution.

We begin with Griffin v. Illinois, 351 U.S. 12 (1956). Here, the Court gave indigent criminal defendants the right to appeal their convictions and to be provided with a transcript of the trial (and pretrial) proceedings. A few years later, Irwin v. Dowd, 359 U.S. 394 (1959) stated that a defendant’s exhaustion of remedies in state court did not bar a federal court’s granting of habeas corpus. And on that subject, state

prisoners are entitled to habeas relief, even if they did not pursue an appeal of the conviction. Fay v. Noia, 392 U.S. 391 (1963) (Justice Brennan on “The Great Writ”).

In the habeas interim, Along Comes [Dollree]; Mapp, that is. The Court announced that the exclusionary rule is applicable in state criminal proceedings. Mapp v. Ohio, 367 U.S. 643 (1961).

OK, habeas; the exclusionary rule. But is the accused entitled to an attorney? You betcha! Maybe the Bible doesn’t tell us so (or perhaps it does, I don’t know), but Gideon v. Wainright does so; in all criminal proceedings, and at the government’s expense if the accused cannot afford one. 372 U.S. 335 (1963). In fact, he/she must be represented by counsel at every critical stage of the proceedings, including pre-indictment, Escobedo v. Illinois, 378 U.S. 478 (1964) and pretrial, such as at preliminary hearings. Coleman v. Alabama, 399 U.S. 1 (1970).1

“The Lord is my Shepherd, I shall not want . . .” Psalm 23; the Psalm2 was read every morning before classes began in the Abington, Pennsylvania public schools, at least until 1963, when Abington School District v. Schempp, 374 U.S. 203 (1963) put the practice to a halt. In Schempp, the SCOTUS held that mandatory Bible reading in public schools is a violation of the First Amendment. Schempp followed in the footsteps of Engel v. Vitale, 370 U.S. 421 (1962), holding that school sponsored prayer in public schools is unconstitutional. Ten years after Schempp, I recall seeing signs in the Unionville Area, as well as in Southern Chester County, which read: “Put the Bible back in school.”3

1Effective assistance of counsel entered the picture post-Due Process Revolution. See: Strickland v. Washington, 466 U.S. 668 (1984).

2As well as some other passages from the Bible.

3The subject of religion in public schools and elsewhere is still controversial.

Let us continue with another subject of contemporary (and even political) importance. At the time of this writing, there are defamation suits galore.4 In a defamation suit in which the plaintiff is a public official, New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and/or a public figure, Associated Press v Walker, 389 U.S. 28 (1967), he/she must prove that the subject communications were made with “actual malice.”

Thank goodness for New York Times. And thank goodness for the Constitutional right of privacy, which the Justices bestowed upon us through “penumbras” and “emanations” of various Bill of Rights and the Ninth Amendment (“other rights retained by the people”). Griswold v. Connecticut, 381 U.S. 479 (1967). That right includes the privilege, without government intrusion, to select one’s own method of birth control.5

The right of privacy extends to any place in which there is an “expectation of privacy,” including a telephone booth, Katz v. the United States, 389 U.S. 347 (1967) and one’s own home. Stanley v. Georgia, 394 U.S. 557 (1969),6 Justice Marshall: “Whatever may be the justification for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own home, what books he may read or what films he may watch”. Id., 565.

“God Only Knows” what we’d be without privacy; but “Wouldn’t It Be Nice” to go back to the year when the Beach Boys recorded that two-sided hit? The privilege to speak is as old as the hills, Gitlow v. New York, 286 U.S. 652 (1925). In 1966, we were given the right not to speak, and to be forewarned as such. Miranda v. Arizona, 384 U.S. 436 (1966). And that same year there came a heyday for young whippersnappers. For the first time, juveniles were recognized as having due process rights. In Kent v. United States, 383 U.S. 541 (1966), the Court noted that due process attaches at waiver hearings, granting young ones a trial on the merits of the proposed transfer, as well as thorough findings of fact, and all the while represented by counsel. Oh, and we must not forget Sheppard v. Maxwell, 384 U.S. 333 (1966), in which the Court reversed the murder conviction of Dr. Samuel Sheppard, upholding Sheppard’s claim (advanced by young lawyer F. Lee Bailey) that the media circus (which the trial judge, who was up for reelection, joyously allowed to continue) that characterized his trial compromised his right to a fair one due to the extensive trial publicity. Sheppard was decided shortly after Estes v. Texas, 381 U.S. 532 (1965), in which the Court overturned the fraud conviction of Billy Sol Estes, holding that the defendant’s due process rights were violated as a result of pretrial publicity.

The next year, In re Gault, 387 U.S. 1 (1967) declared that, in juvenile proceedings, the children who are accused enjoy all of the due process rights as adults in a criminal trial. In re Winship, 397 U.S. 358 (1970) followed, holding that the standard of proof is “beyond a reasonable doubt” if the juvenile is charged with conduct that would give rise to criminal liability as an adult.

There was something else greeting us in 1967. “Greetings,” do thee Ginnie [a Caucasian American] take thee Clarence [an African American] as thy wedded husband? [Ditto for Clarence, except for “wife”]? And, although, each of thee are subject to a $500 fine and a six-month prison term? Even if the marriage can be declared void ab initio in the Great State of Virginia and, perhaps, elsewhere where there are similar laws? But wait. Isn’t there a Constitutional right to marry whomever one pleases, and regardless of race? Well, now there is. Anti-miscegenation laws are in violation of Due Process and Equal Protection. Loving v. Virginia, 388 U.S. 1 (1967).7

Some more 1960s cases are worth noting. Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969) recognized that First Amendment rights are available to school students (and teachers). (The students had been suspended for wearing black arm bands as a symbol of protest against the Vietnam War.) And let us not lose sight of Duncan v. Louisiana, 391 U.S. 145 (1968), which held that the Due Process Clause of the Fourteenth Amendment incorporated the right to a jury trial and made that right applicable to the states. Justice Black’s significant concurrence maintained that all of the Bill of Rights were similarly incorporated. Incorporation had been alluded to in Mapp v. Ohio, supra and in Malloy v. Hogan, 378 U.S. 1 (1964) (securing defendants against self-incrimination).

By the early 1970s, the Due Process Revolution began to dwindle. Nevertheless, Goldberg v. Kelly, 397 U.S. 254 (1970) told us that due process requires a full blown hearing, with prior adequate notice, before state welfare benefits could be terminated. By this time Justice Black, a leader in the Due Process Revolution, had taken an about-face. In his dissent, the Justice appeared to think that the United States had become a “welfare state.” Goldberg, Black, J., dissenting.

The next year, as the Due Process Revolution was fading, elements of it were surviving. Three cases stand out. The United States Justice Department sought an injunction against the New York Times and Washington Post to prevent the publication of the sensitive Pentagon Papers. The Court cited the age-old heavy presumption against prior restraint8

Continued on page 12

4Among others, Donald Trump v. American Broadcasting Companies, Inc. et al. (S.D. Florida); Sarah Palin v. New York Times Company (S.D. New York), referred to infra

5This choice was expanded and made applicable to unmarried couples. See: Eisenstadt v. Baird, 405 U.S. 438 (1972).

6Katz remains good law, even though telephone booths are all but history.

7Chief Justice Warren wrote for the Majority, proceeded by signs all over the South reading “Impeach Earl Warren.”

The Blank Page

Continued from page 11

and, in the balance, ruled against the Government.9

And let us not forget Cohen v. California, 403 U.S. 15 (1971), the subject of which was a tee shirt worn by Cohen in the corridors of a courthouse which read: “Fuck the Draft.” Conviction reversed in the name of freedom of speech. Justice Harlan spoke for the Majority: “For while the particular four-letter word being litigated here is perhaps more distasteful than others of its genre, it is nevertheless true that one man’s vulgarity is another man’s lyric.” Id., 25. The Majority thus concluded: “It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple display here of the single four-letter expletive a criminal offense.” Cohen, 26.

Another case in 1971 has some significance. A driver’s license, although often referred to as a privilege, is a property right, the revocation of which requires due process. Bell v. Burson, 402 U.S. 535 (1971).

Two more significant 1970s cases deserve mentioning before turning to the Due Process Revolution’s grand finale. In 1972, the Court struck down a state law whereby therein was a conclusive presumption that unwed fathers are unfit, without any provision for a hearing on behalf of such a father. Upon the death of the mother (who had cohabited with petitioner-father for 18 years), petitioner’s children were declared wards of the state. The SCOTUS decreed such a law to be a violation of Due Process and Equal Protection. Stanley v. Illinois, 405 U.S. 645 (1972). And Dunn v. Blumstein, 405 U.S. 330 (1972) reaffirmed the proposition suggested in Shapiro v. Thompson, 394 U.S. 318 (1969) that there is a Constitutional right to travel.

To this writer, 1973 brought to a conclusion the Due Process Revolution with Roe v. Wade, 410 U.S. 113 (1973), which provided that there is a Constitutional right for a woman to obtain (and for a doctor to perform) an abortion, subject to reasonable regulations.

In Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), Roe vs. Wade was scrutinized, wherein the Court overruled it. In so doing, Justice Alito, for the Majority, stated (among other numerous charges): “Roe was egregiously wrong from the start.” Dobbs, 231.

Dobbs was not an overnight job. The Dobbs Rule had been in the making for more than three decades. In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), for example, Justice Scalia, joined by Chief Justice Rehnquist, Justices White and Thomas, stated: “The issue is whether it [the right to an abortion] is a liberty protected by the Constitution of the United States. I am [we are] sure

8See: Near v. Minnesota, 283 U.S. 697 (1931).

9New York Times v. United States, 403 U.S. 713 (1971). Chief Justice Burger, Justices Harlan and Blackmun dissented.

it is not.” Id., 980. And the Chief, himself, along with Justices White, Scalia and Thomas, stated: “We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in Constitutional cases." Casey, 944. Justice Blackmun in protest: “I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.” Casey, 943. (Emphasis mine.)

Back to Dobbs, which makes it manifestly clear that if most of the issues in the cases discussed above and cited ante are brought before the SCOTUS, the Court could distinguish or, as in Dobbs, overrule the cases as having been “wrongly decided.” Casey and Dobbs, supra. After all, Dobbs, in overruling Roe v. Wade, a precedential case, has, itself, set a precedent.

Justice Thomas, in particular, has begun to roll up his sleeves. “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty or property could define the substance of those rights strains credulity for even the most casual users of words” . . . Substantive due process is “an oxymoron that lacks any basis in the Constitution” . . . “[T]he Due Process Clause does not secure any [emphasis in the original] substantive rights . . .” Dobbs, 331-332, Thomas, J., concurring in part and concurring in the judgment. “Accordingly, we should eliminate it [substantive due process] from our jurisprudence at the earliest opportunity.” Id., 336.

Since the Court has declared a valuable and important case implicating substantive due process as wrong from the git go, what is to stop the Guys and Dolls from overruling all substantive due process-oriented cases, following Justice Thomas’s lead; or, in the alternative, from picking and choosing, or distinguishing?

Here’s an example. Remember New York Times Co. v. Sullivan (supra)? This is what the most Senior Member of the Court has to say about it: “We should not continue to reflexively [sic] apply the policy driven approach [actual malice] to the Constitution. Instead, we should carefully examine the

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original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures [and public officials] to satisfy the actual malice standard in . . . defamation suits, then neither should we.” McKee v. Cosby, 139 S. Ct. 675 (2019). Thomas, J., concurring in the denial of certiorari (emphasis mine).

At least two cases are headed upwards to the ultimate destination for New York Times: Donald Trump v. ABC, George Stephanopoulos et al. and Sarah Palin v. New York Times Either one, or both, could determine the ultimate fate of the New York Times doctrine.

In conclusion, the next generation might be singing about Due Process: “There Goes My Baby” (The Drifters, 1959); “She’s Come Undun” (The Guess Who, 1969); “Where Have All the Flowers Gone?” (Pete Seeger and others). Where? “Gone With the Wind” (film, 1939; The Dupres, 1963). I have more to say, but nevertheless, I’m signing off.

ATTORNEY DISCIPLINARY AND ETHICS MATTERS

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

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Philadelphia, PA 19102 (215) 751-2863

Lawyers vs. AI

With the implementation of AI rushing at us and changing the practice of law faster than any prior technology, the editor thought it would be useful to give AI a recurring article in New Matter as a way to showcase its abilities. If any readers have AI experiences they’d like to share, or have any thoughts on what AI can and/or should write for New Matter, please contact Maria Janoski, Esq., at mjanoski@janoski-law.com.

The following story was authored by ChatGPT upon entry of this prompt: “Write a 500-word story about lawyers vs. artificial intelligence.” ChatGPT wrote the story in approximately five seconds. I was startled by both the speed of the authorship and how much this sounds like John Grisham’s writing.

In the not-so-distant future, the legal landscape of Metroville had been revolutionized by the advent of artificial intelligence. The city’s prestigious law firms, including Whitmore & Associates, found themselves grappling with a new competitor: AI-driven legal platforms that promised faster, more accurate analysis of cases.

Rebecca Whitmore, renowned for her unwavering dedication to justice, was initially skeptical of the AI’s capabilities. Her team, however, recognized the potential benefits—quicker research, predictive analysis of case outcomes, and vast databases of legal precedent at their fingertips.

One day, a high-profile case landed on their desks—a complex corporate dispute involving intellectual property rights and contract breaches. The opposing counsel boasted an AI system known for its ability to sift through mountains of data in minutes, presenting concise arguments based on precedents from around the world.

Undeterred, Rebecca and her team delved into the case with their trademark blend of meticulous research

and strategic planning. Sarah, the firm’s ace researcher, combed through the intricate details of the contracts, uncovering subtle nuances that the AI might have overlooked. John, the charismatic litigator, crafted a narrative that humanized their client’s plight, appealing not just to legal technicalities but to the moral high ground.

Meanwhile, David, the tech-savvy investigator, devised a strategy to challenge the AI’s findings. He identified gaps in its logic, areas where human intuition and understanding of contextual nuance could make a crucial difference. The team’s collaborative effort was a testament to their belief that the law wasn’t just about data—it was about empathy, insight, and the ability to connect with a jury on a human level.

As the trial progressed, tensions mounted in the courtroom. The AI’s arguments were sharp and precise, backed by a seemingly endless array of legal precedents and statistical probabilities. Each day, Rebecca and her team countered with compelling counterarguments, poking holes in the AI’s rigid interpretations and

highlighting the emotional impact on their client and the broader implications for justice.

In a pivotal moment, during cross-examination, John skillfully dismantled the AI’s witness—a virtual expert witness programmed to recite legal doctrines with unwavering confidence. With a series of pointed questions, John exposed the limitations of the AI’s understanding, revealing how it failed to grasp the subtle nuances of human behavior and intent.

The courtroom buzzed with anticipation as Rebecca delivered her closing argument. She appealed not just to the judge’s intellect but to their sense of fairness and justice. She argued that while AI could provide valuable insights, it lacked the empathy and intuition that only human lawyers could bring to bear in a complex legal dispute.

After days of deliberation, the judge rendered a verdict in favor of Whitmore & Associates’ client. The decision underscored the enduring value of human expertise in the face of technological advancement. Rebecca and her team celebrated their hard-fought victory, knowing they had proven that while AI could augment legal practice, it could never replace the passion, creativity, and humanity that defined their profession.

As they left the courtroom, Rebecca reflected on the future of law in a world increasingly dominated by technology. She knew that the battle against AI was far from over, but she also knew that as long as there were clients in need of justice, there would always be a place for skilled lawyers like herself and her team at the forefront of the fight.

A comment from John McKenna, Esquire, after reading this article:

There seems to be several temporal disconnects. For example, the article talks about research and planning and then jolts forward, and the reader is now in the middle of trial. The language also is over “dime novel descriptive.” The story devolves to a pulp fictitious story.

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Bringing the Association to You: Enhancing Member Access and Engagement

RBy Greg Nardi CCBA Executive Director

ecently, one of our longtime members shared with me how much he enjoyed attending our in-person networking events and CLEs but also appreciated the opportunity to attend CLEs remotely when needed. We know that our members are busier than ever; juggling court appearances, client meetings, and preparation time, not to mention family and personal interests. In light of these constant yet evolving challenges, the CCBA continues to take care of our members’ professional needs and offering benefits in flexible ways.

While in-person networking and professional development is often identified as the important benefit for many members, one of the key goals for the staff and I is to ensure that our members can access the full value of their membership, no matter where they are.

To that end, we’ve embraced the theme of “bringing the association to the member” by continuing to think about and expand opportunities to participate and engage remotely. Here are some of the many ways we’re making this possible:

1. Hybrid CLEs and Meetings: We continue to offer CLEs and committee/section meetings in a hybrid format. This allows our members to attend regardless of their location and when time may not be available for travel, making it easier to balance work commitments with professional development and committee involvement. This format allows us to collaborate with other organizations, such as CLEs at other bar associations, to allow our members to take advantage of a greater range of offerings.

2. Online Practice Area Communities: Our LISTSERV online communities provide a space for members to send messages within their practice areas, where they can seek advice, obtain references, and exchange information with colleagues. This is a great way to stay connected and collaborate without the need for inperson meetings.

3. On-Demand CLE Library: Members can access a growing library of recorded CLE programs, allowing them to catch up on past in-person events at their convenience. Whether it’s early in the morning or late at night, our members can learn on their own schedule.

4. Timely Updates from the Court and County: We continue to push important updates from the court, judges, and county offices directly to your inbox through email and newsletters. These timely notifications help members stay informed without needing to monitor multiple sources.

5. Weekly Legal Journal: Our Law Reporter is emailed to all members for free and contains essential legal advertising as well as opinions from the Chester County Court of Common Pleas. This ensures that members have easy access to critical legal information to inform their practice.

6. Quarterly Magazine, New Matter: Every quarter, members receive our printed magazine, New Matter, which features articles that highlight member achievements and offer tips for enhancing wellness and lifestyle. This resource is designed to keep members connected and inspired.

7. Membership Directory: We provide both digital and printed membership directories to all members free of charge. This resource makes it easy to connect with fellow members whether for professional collaboration, networking opportunities, or lawyer-tolawyer referrals.

8. Recognition Programs: Our awards and recognition programs have adapted to also include a virtual format, leveraging social media to highlight the accomplishments of our members. In addition to these online celebrations, we continue to honor members at in-person events as well.

9. Virtual Job Board and Career Tools: Members can advertise and explore job opportunities and access career development tools through our virtual job board, available on our website. This resource helps members advance their careers with ease, whether they’re seeking new positions or enhancing their professional skills.

10. Exclusive Member Discounts: Through partnerships with local businesses, we offer exclusive discounts to members that they can use when out with friends, family, or clients.

11. In-person events – but sometimes not in West Chester: While most of our events are in and around the county seat, we know that many of our members practice throughout the county and we endeavor to hold some of our social and networking events in those areas where our members live and work. This past year, we held events in Kennett Square and Exton, which were well attended. We will maintain this goal of hosting events in those areas away from West Chester where we see pockets of our members.

The staff and I remain committed to ensuring that each of our members can benefit from the resources and community of the Chester County Bar Association, no matter where they are. We’ll continue to explore new ways to bring value to you, whether you’re attending in person or engaging from a distance. I hope to see you in-person or online soon!

Save the Dates!

November

November 8 Veterans Day Luncheon

November 14 CCBF Fellows Reception

November 15 Naturalization Ceremony

December

December 5 Annual Meeting, Memorial Service & Holiday Reception

CCBA BAR TAB

New personal and professional

updates

LAMB MCERLANE announces that JULIE M. POTTS has joined the firm as a partner, along with two associates,

PATRICK (PJ) MCGINNIS and SARA HENTSCHKE.

Cindy Earl

Joyce Schaedler

Brooke Hutton

Marc Shipon

Warren Hampton

Jennifer Ermilio

Christopher Carr

Rodney Myer

Loreen Kemps

Haley Walker

Daniel Smith

Emily Baker

GAWTHROP GREENWOOD, PC, a regional law firm with offices in West Chester and Berwyn, PA as well as Greater Wilmington, DE, welcomes JENNIFER L. SIMONS as an associate attorney practicing in the firm’s Trusts and Estates Department.

DON TURNER, a founding member of UNRUH TURNER BURKE & FREES, has been named the 2025 Best Lawyers “Lawyer of the Year” in Real Estate for the Philadelphia region!

2024 Members!

Welcome to CCBA!

Nikhil Sindwani

Eric Borjeson

Christopher McMullin

Caroline Blank

Pietro Barbieri

Nicholas Galluzzo

Jennifer Nash

Pamela Kroh Beech

Madeline McIntosh

Olivia Gomez

Matthew Woodward

Matthew Kline

David Garrison

Christopher Dougherty

Stewart Roll

Todd Rowe

Christopher Rothermel

Daniel Sand

Sara Hentschke

Raymond McGarry

William McDonough

Colleen Preston

Julie M. Potts Patrick (PJ) McGinnis

Sara Hentschke

2024 Fall Bench Bar Conference

The Hotel

Guest Speaker, Thomas Farrell

Friday night Dinner at Hershey Gardens

Chester County Common Pleas Judges

Platinum Sponsor, My Benefits Advisor and USI Affinity

Thursday night Jenga

Friday night Carnival Games

Shuttle rides with CCBA Staff

Castilian Room

CCBA Staff at Hershey Gardens

Andrea Pettine, Marta Laynas, Cathie Voit, and Cheryl McCallin

Hershey

Chocolate Martinis

Interested in Becoming a Design Patent Practitioner?

By Scott M. Slomowitz, Esquire

The United States Patent & Trademark Office (USPTO) is currently accepting applications for individuals interested in becoming a design patent practitioner (DPP). To qualify, you must have a degree from an accredited institution in any of the areas of industrial design, product design, architecture, applied arts, graphic design, fine/studio arts, or art teacher education, and you must pass a registration examination on the patenting process and procedure, as well as a moral character evaluation. But you do not need to be a lawyer. See the USPTO flyer about this at https://www.uspto.gov/ sites/default/files/documents/OEDDesignBarFlyer.pdf.

What is the Difference Between a Utility Patent and a Design Patent?

When most people hear the word “patent” they typically think of what is more accurately known as a “utility patent.” This type of patent protects an invention, whether it be a device, or a system, or a method or process or a chemical formulation. §101 of Title 35-the Patent Statute. But there is also another type of patent that protects the ornamental or aesthetic features of a tangible item, referred to in the Patent Statute as an “article of manufacture (AOM),” as opposed to a system or method or process, or chemical formulation. Under the 35 U.S.C. §171, “Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title.”

So whereas a utility patent protects the utility of the invention, i.e., the structure, and/or operation/function of an invention, a design patent protects the ornamental or aesthetic outward appearance of an AOM.

As such, to prepare a utility patent application, and then “prosecute” it through the USPTO, (“prosecute” as used in this article means to communicate with the USPTO during patent application examination by responding to examiner office actions in order to move the patent application to issuance as a “patent”), a patent practitioner must have a technical background (e.g., engineering, physics, chemistry, computer science, or other technical background in accordance with the USPTO General Requirements Bulletin: Part III: Categories A-C) in order to draft the utility patent application and then prosecute it. A patent practitioner is either a patent attorney or patent agent. If the invention is properly disclosed (known as the “enablement” requirement) in the patent application and during examination if the examiner finds that the textual claims of the patent application are novel (35 U.S.C. §102(a)(1)-(2)) and non-obvious (35 U.S.C. §103) over the prior art, then the utility patent application can become a utility patent (scan the QR code below to see an example of a "utility patent").

In contrast, since a design patent ((Scan QR code at left for an example) protects the “appearance,” rather than the “function” of an AOM, the requirement for a technical background is less rigid (Category D of the USPTO General Requirements Bulletin: Part III). A design patent (originally filed in the USPTO as a design patent application) basically consists of the six views of the AOM, namely, top/bottom views, right-side/

Continued on page 22

Design Patent Example

Utility Patent Example

Continued from page 21

left-side views and front/rear views, and occasionally supplemented with isometric views (a view showing several sides at once, basically showing the AOM as a three-dimensional object). The standard of patentability is similar, namely, during examination, the claims of the design patent application must be found to be novel and non-obvious. But instead of textual claims, the claims of a design patent are the figures themselves. As such, the USPTO has strict drafting rules for the figures that appear in the design patent application in order to meet the enablement requirement.

More design patent applications are being filed in the USPTO so the need for both design patent practitioners, as well as design patent examiners in the USPTO, is growing: https://www.uspto.gov/about-us/news-updates/ uspto-issues-milestone-1-millionth-designpatent#:~:text=More%20inventors%20are%20 applying%20for,%2C%20or%20font%2C%20in%201842.

Furthermore, a May 21, 2024 Federal Circuit decision (Case 21-2348) LKQ Corporation. v. GM Global Technology Operations LLC, has overruled a longstanding test for obviousness (35 U.S.C. §103) in design patent examination, known as the Rosen-Durling test. The Rosen-Durling test placed limits on the type of “primary references” that the design patent examiner could cite in rejecting a design patent application based on obviousness. In most typical §103 Obviousness rejections, an examiner needs to combine a primary reference with at least one or more secondary references to assert that one skilled in the art would combine these references to teach or suggest the claimed invention, thereby rendering the claimed invention unpatentable. But such a rejection is rebuttable by the applicant. In LKQ Corporation, the Federal Circuit ruled that the standard of obviousness used in examining utility patent applications from KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 127 S. Ct. 1727 (2007) should also apply in design patent application examination. The end result will most likely allow a wider range of “primary references” to be cited by examiners in rejecting design patent applications under §103 Obviousness. So with an increase in §103 Obviousness rejections in design patent application examination, the need to rebut such rejections by DPPs will also grow.

So if you or if you know someone who may be interested in becoming a DPP, check out the USPTO flyer at the link provided above.

Matthew L. Meredith

Alexandra Roberts

audrey suggs

Arianna pompei Litigation Department

Jennifer Ermilio Julia Ann Castanzo Litigation Department

Standards for Intervention and Associational Standing Are Clarified by the Pa Supreme Court

By John R. Embick, Esquire

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

The Pennsylvania Supreme Court recently announced an interesting opinion regarding the standards for determining intervention and standing of associations in two related matters. The two cases were Shirley, et al v. Pa Legislative Reference Bureau, et al., No. 85 MAP 2022, and Shirley, et al v. Pa Legislative Reference Bureau, et al., No. 87 MAP 2022, and the decision was issued on July 18, 2024. The majority opinion was written by Justice Dougherty. Chief Justice Todd, and Justices Donohue and Wecht joined in the majority opinion. A concurring opinion was filed by Justice Donohue, which was joined by Chief Justice Todd. Justices Mundy and Brobson filed separate concurring and dissenting opinions. The concurring opinion by Justice Donohue also again addressed and reaffirmed some of the holdings in the Court’s 2017 opinion in PaEDF v. Commonwealth, et al., 161 A.3d 911 (Pa. 2017) regarding, among other issues, the rights of individuals and the duties and obligations of Commonwealth governments implicated by Art. 1, sec. 27 of the Pennsylvania Constitution (also known as the Environmental Rights Amendment or the ERA).

The case involved Pennsylvania’s efforts to join the RGGI (Regional Greenhouse Gas Initiative) group. The RGGI is a joint effort by several states to impose controls on the emission of greenhouse gases, including carbon dioxide. Greenhouse gas emissions are strongly associated with climate change. The Commonwealth prepared a rulemaking package to effectuate the Commonwealth’s participation in the RGGI. The RGGI rulemaking was challenged in Commonwealth Court. Three environmental organizations, Citizens for Pennsylvania’s Future, the Clean Air Council and the Sierra Club (“Environmental Organizations”) sought to intervene in the litigation, but were denied intervenor status. The Pa. Supreme Court reversed.

Basically, RGGI is a system of emission controls, based on a framework which governs the trading of permissions (“allowances”) to emit specific amounts of carbon dioxide (CO2). Companies wishing to emit CO2 must purchase allowances. The Commonwealth developed RGGI regulations, but the Legislative Reference Bureau (LRB) refused to publish the regulations in the Pennsylvania Bulletin (this is a long story, in itself, largely involving politics). The Pa. Department of Environmental Protection (PaDEP) then sued the LRB. A number of state senators and state representatives petitioned for leave to intervene, and the petitions were granted

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by the Commonwealth Court. The Environmental Organizations also filed intervention petitions, seeking to defend the RGGI regulations using the authority of the ERA. The Environmental Organizations were denied intervenor status by Commonwealth Court.

In the opinion denying intervenor status to the Environmental Organizations, Commonwealth Court indicated that a person “shall be permitted to intervene” in an action if “the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.” Ziadeh v. Pa. Legis. Ref. Bureau, 41 MD 2022 & 247 MD 2022, slip op. at 10 (Pa. Cmwlth., July 8, 2022) (unpublished memorandum) (Wojcik, J.), and quoting Pa.R.C.P. 2327. Commonwealth Court further noted that “an application for intervention may be refused” if “the interest of the petitioner is already adequately represented[.]” Id. at 11, quoting Pa.R.C.P. 2329. Commonwealth Court basically decided that PaDEP adequately represented the interests of the Environmental Organizations and denied intervention. The Environmental Organizations disputed this conclusion and appealed to the Pa. Supreme Court.

In dealing with the intervention dispute, the Pa. Supreme Court determined that an interlocutory order denying intervenor status may be immediately appealed if the challenged order satisfies the three requirements set forth in Pa. R.A.P. 313, namely separability, importance and irreparability. Shearer v. Hafer, 177 A.3d 850, 858 (Pa. 2018). The Court refers to this as the “collateralorder doctrine.” The Supreme Court found that the Environmental Organizations met the standards imposed by Pa.R.A.P 313. In discussing the importance prong of Pa. R.A.P 313, the Court stated:

Second, Nonprofits claim the right to intervene to protect, inter alia, environmental well-being. See Nonprofits’ Brief at 4. This interest is significant and shared by the public at large. See Franklin Twp. v. Pa. Dep’t of Env’t Res., 452 A.2d 718, 720 (Pa. 1982) (“Aesthetic and environmental well-being are important aspects of the quality of life in our society[.]”).

MO slip op. at 18.

Turning to the merits, the High Court noted that the resolution of an intervention question is a matter of discretion of the court below, and the exercise of discretion will not be disturbed unless there is a manifest abuse of discretion. MO slip op at 24.

The Court then determined that the provisions of Pa. R.C.P. 2327 govern intervention in this matter, and

focused on the provisions of Pa. R.C.P 2327 (4)(“the determination of such action may affect any legally enforceable interest of such person, whether or not such person may be bound by a judgment in the action.”

The majority opinion Justices then reasoned that whether a potential party has a legally enforceable interest turns on whether they satisfy the standing requirements, citing Markham v. Wolf, 136 A. 3d 134, 140 (Pa. 2016). The Court then reviewed the standing requirements, as follows:

Generally, the doctrine of standing is an inquiry into whether the [potential party] has demonstrated aggrievement, by establishing a substantial, direct and immediate interest in the outcome of the litigation.” Robinson Twp. v. Commonwealth, 83 A.3d 901, 917 (Pa. 2013) (quotation marks and citation omitted). “[A] ‘substantial’ interest is an interest in the outcome of the litigation which surpasses the common interest of all citizens in procuring obedience to the law[.]” Pa. Med. Soc’y v. Dep’t of Pub. Welfare of Com., 39 A.3d 267, 278 (Pa. 2012). “[A] ‘direct’ interest requires a showing that the matter complained of caused harm to the party’s interest.” Id. An interest is “immediate” if that “causal connection” is not remote or speculative. Id. An association has standing as a representative of its members, even in the absence of injury to itself, if it establishes at least one of its members has standing individually. See Robinson, 83 A.3d at 922; Pa. Med. Soc’y, 39 A.3d at 278.

MO slip op. at 25.

The High Court then reviewed the evidence of individual members of the Environmental Organizations and found that they had individual, evidence-based standing. The court then found that the Environmental Organizations (referred to as “Nonprofits” in the opinion) also had standing:

As members of Nonprofits have evidence-based standing individually, it follows Nonprofits have associational standing as representatives of their members. See Robinson, 83 A.3d at 922; Pa. Med. Soc’y, 39 A.3d at 278. Thus, Nonprofits perforce have legally enforceable interests entitling them to intervention under Rule 2327(4). See Allegheny Reprod. Health Ctr., 309 A.3d at 844; Markham, 136 A.3d at 14.

MO Slip op. at 30.

Where Commonwealth Court erred in resolving the intervention issue, according to the Supreme Court majority, was in the lower court’s determination that

intervention of the Environmental Organizations should be denied based on Pa. R.C.P. 2329(2), namely because the interests of the Environmental Organizations were adequately represented by PaDEP. The High Court reached this conclusion because it found that PaDEP had failed to raise the authority of the ERA as a basis of support of the RGGI regulation, and, in contrast, the Environmental Organizations had raised ERA claims. In an interesting concurring opinion, Justice Donohue, joined by Chief Justice Todd, wrote to further elucidate what role the assertion of the ERA claims by the Environmental Organizations played in the resolution of the intervention question. Justice Donohue wrote:

The ERA “establishes a public trust, pursuant to which the natural resources are the corpus of the trust, the Commonwealth is the trustee, and the people are the named beneficiaries.” Pa. Env’t Def. Found. v. Commonwealth, 161 A.3d 911, 931–32 (Pa. 2017). Nonprofits’ members, as residents of this Commonwealth, are beneficiaries under this trust. See Application for Leave to Intervene, 4/25/2022, 40-42, 58. The ERA imposes upon all agencies and entities of our government, in their role as trustee, the duty to

prohibit the degradation, diminution, and depletion of the public natural resources, as well as the duty to act affirmatively through legislative action to protect the environment. Id. at 933. This Court has previously established that the ERA trust is governed by the principles applicable to private trusts. Id. at 932-33; see also Pa. Env’t Def. Found. v. Commonwealth, 255 A.3d 289, 308 n.12 (Pa. 2021).

CO slip op. at 2-3.

The concurring justices went on to state that the Environmental Organization’s members, as beneficiaries of the trust, possess a legally enforceable interest in the trust res (i.e., the natural resources of the Commonwealth). The Court noted that this legal interest might be adversely affected by the efforts to enjoin the RGGI regulations, and this sufficed to establish a right to intervene under Pa. R. C.P. 2327(4).

In a footnote, the majority opinion also noted that Pa. Commonwealth Court had earlier opined that the ERA’s protections were enforceable by citizens bringing suit in an appropriate forum, and cited Feudale v. Aqua Pa., Inc.,

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122 A.3d 462, 468 (Pa. Commw. 2015), aff’d 135 A. 3d 580 (Pa. 2016).

In a concurring and dissenting opinion, Justice Brobson argued that the members of the Environmental Organizations did not have a legally enforceable interest sufficient to establish standing for intervention purposes, and therefore the Environmental Organizations did not have associational standing. Further, Justice Brobson argued that Commonwealth Court correctly denied intervenor status because the interests of the Environmental Organizations were adequately represented by PaDEP.

In another concurring and dissenting option, Justice Mundy opined that the Environmental Organization’s members did not meet the traditional standards for standing, and that PaDEP was adequately representing their interests. Justice Mundy posited that the High Court appeared to be loosening the standards for standing and intervention.

Justice Donohue’s concurring opinion reemphasizes several of the important holdings in PaEDF v.

Commonwealth, et al., 161 A.3d 911 (Pa. 2017). However, the Court has not yet definitely stated what the trustees must do to comply with the mandate of the ERA. Are the ERA rights procedural, or are they substantive, or both?

Some attorneys (including me) have argued that the ERA rights are both procedural and substantive. I have suggested that a three-part test should be employed to determine if a proposed action is compliant with the mandate of the ERA, and I wrote about it earlier (see, New Matter, 1st Quarter, 2024).

So, if you are interested in the standards for intervention and associational standing, take a look at these opinions.

•

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2024 Chester County Softball League

By Thomas Grant, Esquire

This summer, Chester County employees and local attorneys took their disagreements out of the courtroom and faced off on the ballfield for another summer of slow-pitch softball at West Chester’s Greenfield Park on Thursdays. The 2024 Chester County Softball League consisted of four teams: the District Attorney’s Office, the Bar Association, the Chester County Prison Employees, and finally the “NRA” (a combination of the Public Defender’s Office, Adult and Juvenile Probation Offices and the Legal Aid of Southeastern Pennsylvania). This year, that consisted of six regular season games and then a league-wide playoff over the course of May-September.

The Bar Association took the #1 seed following an undefeated regular season and faced off against the #4 Prison team in the semi-finals. Despite a hard fought game, the Bar Association would move on to the Championship series following an 18-9 victory. On the other side of the bracket, the #2 District Attorney’s Office came out on top against the #3 NRA by the score of 14-4. The following week, the best-of-3 championship series of Bar Association v. DA took place, with the Bar Association winning both games to take home the title under the lights.

Tom Grant, the commissioner of the Chester County Softball League, hopes to see the number of teams increase in the coming years. “I believe we had 8 teams in the league in the mid-2010s, and I know we had 6 when I first started playing.” Tom joined the league in 2019 as part of the Bar Association team, but they struggled to rally numbers again once the league returned postpandemic, with only three teams in 2022 and four in 2023, though one of those teams did not return this year. “This year, we were thrilled to have the Prison team re-join the league, and I think having a solid base of four fully-committed teams is a great step,” said the league commissioner, with hopes to “ideally get to 6 teams as soon as possible and hopefully 8 soon after.”

He added that “The league is open to any and all county departments that have interest, or even just a few people that want to play.” Anyone interested in adding or merging with a team is encouraged to reach out. “If a few people from a few different county departments all express interest, that’s all it takes for us to add another team. It may not be six full departments like it was pre-COVID, but getting back to six teams would be a welcome development.”

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D a w s o n M u t h

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D e n o t e s K e y F e l l o w

What’s Going On With Real Estate Commissions?

By L. Robert Frame, Jr. Esquire, REALTOR(R)

Associate Broker, Coldwell Banker Realty

Buying or selling a home is one of the most financially significant transactions that most individuals will ever undertake. Licensed agents who are REALTORS® are the professionals that buyers and sellers rely on to navigate the ever-changing real estate market. These agents are paid a commission for their services.

Historically, when a seller hired a real estate agent to represent them, the seller agreed to pay a commission. The national average has been about 5% – the average commission in Pennsylvania is 5.48% – of the home’s sale price, (www.bankrate.com/real-estate/realtor-fees) typically split equally between the listing (seller’s) agent and the buyer’s agent. (So, on a $500,000 home, 5% comes to $25,000, or $12,500 for each agent.) That all changed on October 31, 2023!

Compensation (in the form of commission) is the amount a seller is willing to offer a buyer’s agent, often called “buyer-broker compensation.” Previously, it was displayed in the Multiple Listing Service (MLS) and has always been negotiable. This system has been around for many years and has been very effective for all parties –sellers, buyers and their agents.

History of the Case. What Happened?

In 2019, a group of Missouri home sellers initiated a class-action lawsuit against the National Association of Realtors® (NAR) and several large real estate companies. The sellers of more than 260,000 homes in the Midwest alleged that a “conspiracy” among real estate brokers resulted in real estate commissions that were too high, buyer’s firms being paid too much and NAR’s REALTOR Code of Ethics, MLS Handbook and the practices of the corporate defendants contributed to inflated commission rates.

The plaintiffs challenged NAR’s “Participation Rule,” which mandated that Multiple Listing Service (MLS) participants offer compensation to cooperating firms. This requirement meant that when listing a property on the MLS, the listing firm has to make an offer of compensation to cooperating firms, which could be buyer’s firms or subagent firms.

There were two legal theories presented in this antitrust case. The “per se” rule and the “rule of reason.” The

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“per se” rule presumes certain conduct to unreasonably restrain trade in violation of the Sherman Act. Per se violations are inherently anticompetitive and automatically unlawful, with no opportunity for the defendant to justify or defend their actions. Under the “per se rule,” the only determination left for the Court is the extent of damages and attorney fees, with per se violations carrying a conclusive presumption of anticompetitive effects. In contrast, the rule of reason is a balancing test that evaluates the pro-competitive and anticompetitive aspects of a practice affecting market competition. The Court instructed the jury to apply the per se rule.

The trial of this case took place in October of 2023. On October 31st of 2023 the verdict was announced with the plaintiff homeowners prevailing. (Burnett v. National Association of Realtors®, No. 19-CV-00332-SRB, 2022 WL 1203100 (W.D. Mo. Apr. 22, 2022)). The verdict asserted that “a conspiracy existed to follow and enforce the Cooperative Compensation Rule” and that the arrangement caused the plaintiffs “to pay more for real estate brokerage services” than they otherwise would have. (www.wra.org/WREM/May24/Background)

Under the per se rule, the jury decided very quickly for the plaintiffs and held the defendants liable for $1.78 billion in damages, which is tripled to $5.4 billion in this type of a lawsuit. Before the trial, however, two brokerage defendants settled for a total of $138 million and another settled in February 2024 for $70 million. The National Association of Realtors® (NAR) agreed to a proposed settlement of $418 million in damages along with agreeing to implement a number of practice changes. The proposed settlement was announced on March 15, 2024. Shortly after NAR agreed to the proposed settlement, another defendant agreed to settle for $57.5 million. Final Court approval of these settlements is expected in November 2024.

What Changes Are Being Made?

On August 17, new rules promulgated through MLSs across the country change how real estate agents are paid to help people buy and sell their homes. As part of the above settlement, The National Association of Realtors® entered into a comprehensive settlement to address a nationwide series of class action lawsuits challenging certain rules and practices around brokerto-broker compensation and seller assistance for buyer broker fees. The terms of the settlement, in addition to paying damages, require brokers, agents, Multiple Listing

Services (MLS) and State and National REALTOR® associations to make changes to how they approach their roles in the business of real estate. MLSs will have to change certain rules, brokers and agents will have to adjust certain business practices, and associations that produce forms will need to ensure that those forms reflect the new practice rules.

In Pennsylvania, the Pennsylvania Association of Realtors® (PAR) has a primary role in the process which is to revise a number of standard forms to be used by agents across the state so that they may legally comply with these new rules and policies. In total, about 25 forms are being updated, along with a new form or two. So what are these new rules? Here is an outline of the changes mandated by the rules changes (facts.realtor):

1. Listing brokers can no longer make offers of broker-tobroker cooperating compensation in the MLS. Listing brokers can still offer cooperating compensation to buyer brokers and advertise it in other ways – on company & agent websites, on signs, in e-mails or texts between agents, written agreements between brokers, on flyers, verbally – just NOT through the MLS. It will be interesting to follow how this obvious inconvenience in conveying commission rates will be corrected over time.

2. Sellers will not be allowed to make offers of seller concessions for the specific purpose of paying a buyer broker fee owed by a buyer. Sellers can still offer concessions and Brokers can advertise this general intent in other ways (with the consent of their sellers), with the final agreement between the parties recorded in a signed agreement of sale.

3. Buyer brokers who belong to an MLS that’s covered by the NAR settlement are prohibited from retaining any buyer broker fee above what the buyer and buyer broker have negotiated in their agency/fee agreement, regardless of the source of those funds (cooperating compensation, seller-paid or buyer-paid.) So, if a buyer and their agent agree on 2.5% and the seller is offering 3%, the buyer’s agent can only accept 2.5%.

4 Brokers “working with” buyers are required to sign a written agreement with that buyer prior to touring any property. Unlike almost all written listing contracts between seller and listing broker, the requirement of a written agreement between a buyer and their agent, in many cases, may have been ignored until now.

5. Finally, and most significantly, it is no longer assumed that the buyer’s agent is being paid by the seller. (Pennsylvania Association of Realtors® Standard Forms

Update, Page 6). As outlined below, compensation could also come from the buyer directly to their agent.

How Will Agents Get Paid Based on the New Rules? (Coldwell Banker Realty Handout)

Sellers get paid in the same way that they always have – a negotiated amount between the Seller and the Seller’s agent. However, this amount does not necessarily have to include payment to the Buyer’s agent. Buyer’s (and Seller’s) agent commission is not set by law and is fully negotiable. Listed below are 4 ways that a buyer’s agent will be paid under the new rules:

If the Seller Offers Compensation:

1. The seller of a property can offer to pay the commission due from the buyer to the buyer’s agent. In this case, the commission obligation from the seller’s agent to the buyer’s agent will be paid by the seller out of funds the buyer pays to purchase the home.

2. The seller has offered compensation consisting of only a portion of the commission that the buyer has agreed to pay to the buyer’s agent. This would require the buyer to pay any portion of the buyer’s agent commission not paid by the seller. Alternatively, the buyer could condition the purchase offer on the seller paying all of the buyer’s commission obligation to the buyer’s agent. This would be stated in the Agreement of Sale and would be a term of the offer. Prior to these policy changes, at least in Pennsylvania, commissions were NEVER addressed in the Agreement of Sale.

If the Seller DOES NOT Offer Compensation:

1. The seller has not offered to pay any portion of the commission that the buyer would owe to the buyer’s agent. In this case, you can include a requirement that the seller pay the buyer’s commission obligation as part of the offer that the buyer makes on the property.

2. The seller will not agree to pay a buyer’s agent commission, in which case the buyer would be responsible for the commission.

Even though the rules have changed and sellers no longer have to offer compensation to the buyer’s agent, continuing to offer this compensation has some very significant benefits to the seller. These benefits include:

1. Making the seller’s property attractive to the widest possible pool of potential buyers by paying all buyer’s agents to show the property thereby creating the highest demand for the seller’s property.

2. Often, buyers need their cash for a down payment and other significant closing costs. It may be important to them to have an agent representing them, but some buyers may not have the cash to pay their own agent out of pocket and therefore will not look at properties where the seller is not paying the buyer’s agent.

3. Experience shows that the seller benefits from the buyer having an agent because the transaction goes much more smoothly. Without an agent representing the buyer, the closing process can take longer, and other complications can arise. Offering compensation to the buyer’s agent generally increases the chances that the buyer is represented by a licensed professional who will manage their side of the transaction.

What Effect Will These Changes Have on Buyers, Sellers and Agents?

A significant change will be increased transparency in buyer-agent relationships. Buyers will be required to enter into a contract with an agent before that agent can show them any properties. Some states already require this. However, this new rule will be a change for buyers and agents in about 30 states, including Pennsylvania, where written representation agreements were suggested but never required. This may be very unfair to buyers because they might not even know the agent that they choose to work with. A remedy may be contracts that will only cover one property and have a very short term.

Another change for the buyer is that they may be paying their agent a commission instead of it being paid by the seller. In the case of first-time buyers, who are hard pressed to get all the funds together for a down payment and closing costs, having to pay their agent an additional 2 to 3 percent of the sales price may be a deal breaker. Buyers dealing directly with the listing agent and not being represented by a buyer’s agent will be the only way that many cash strapped buyers will be able to participate in the transaction. This is great news for listing agents but not so great for buyer’s agents.

In contrast, an advantage to a buyer who has the funds to pay their own agent and where a seller is offering a commission, is to pay their agent, thereby netting the seller an additional amount budgeted for the buyer’s agent commission! In a very competitive real estate market, with low inventory, a buyer who has the funds to pay transfer tax and the buyer broker’s commission, will definitely have a leg up on the competition.

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Sellers can expect to negotiate a lot more than before. Sellers will technically have the choice whether they want to offer any compensation to the buyer’s agent – or none at all. As noted above, this has obvious disadvantages. Why would a seller want their property listing in an MLS system that is seen by all agents to then tell those agents that they aren’t being paid by the Seller. This is an out of pocket advantage to the seller but will likely result in a lower selling price for their property. Sellers may be making lower offers than the asking price, due to factoring in the cost of paying for the buyer’s agent’s commission. Sellers may also see a smaller buyer pool if unwilling to pay a portion of the other agent’s fee, as agents may be less likely to show that home. Many buyers will be instructing their agents, especially first time buyers, not to show them homes where the commission is not being paid by the seller. Again, at the very least, sellers should be willing to negotiate on these commissions. There is also the option for Sellers to sell their own property – known as For Sale By Owner or FSBO. However, National Association of Realters ® statistics show that FSBO sellers average about 17% less than sellers who are represented by an agent.

New pricing models for buyer’s agents are a potential change that could result from the settlement. Changes to lending could happen, as well, such as allowing buyers to finance their commission in certain scenarios. In the case of VA loans, the Department of Veterans Affairs has already taken action. Previously, VA borrowers were not allowed to pay any sort of agent commission. Now, the VA allows certain “reasonable” commissions to be paid by the borrower.

(NOTE: Bob Frame will provide, at no charge, a copy of the National Association of Realtors® Settlement FAQS if requested, for your review.) Continued from page

defend the value they are adding to the process as they negotiate their own compensation.

SUMMARY

The new seller and buyer agent commission rules promulgated as a result of the National Association of Realtors® settlement is going to change the way the sellers, buyers and their agents do business in Pennsylvania and across the country. Some of these changes will be good and enhance the real estate sales professionalism. Other changes will be confusing to buyers and sellers and agents in an already challenging real estate market and may financially restrict certain buyers from buying. Despite what changes are made or will be made associated with real estate commissions, the sale and purchase of real estate will continue as normal based on mortgage interest rates, home inventory, prices and, of course, location, location, location. After all, everybody has to live somewhere!

There may also be the potential for an exodus among real estate agents – particularly buyer’s agents, who no longer have a guaranteed commission to count on. Newer agents will be at a greater disadvantage based on their lack of real estate skills in negotiating their commissions with their buyers. Why would a buyer hire an inexperienced agent and pay them the same amount as an agent with years of experience? Buyer’s agents who want to compete and stay busy are going to need to learn to showcase and

End-of-Year Giving LEGACY PHILANTHROPY

As the end of the year approaches, many people think about charitable giving. Whether motivated by the holiday spirit, tax deductions, or the desire to make a positive difference, year-end giving can greatly benefit local nonprofits and the communities they serve. To ensure that these contributions are most impactful, it is essential to approach charitable donations with a thoughtful plan.

At the Community Foundation, we receive this concerned phone call all too often: “I have a client who wants to leave a large portion of their estate assets to XYZ charity. I’m hesitant because I’ve heard that this charity is fraught. Can you help? We want to encourage legacy philanthropy but we’re uncertain about this charity. What should I tell my client?”

The Chester County Community Foundation is here to help guide your clients with due diligence and expertise, so they can identify legitimate charities that do impactful work. Due diligence has two levels. The first level is compliance: Is the charity registered properly? The second level is performance: Does the charity’s work make a significant positive difference?

To start, we encourage you to take advantage of FREE online tools. Start at charitynavigator.org, where you’ll find ratings for 200,000+ charities. Even more illuminating, guidestar.org at Candid has profiles for 2 million nonprofits along with IRS 990 forms. These public documents disclose the proportion of a nonprofit charity’s expenditures on programs and services, fundraising and administration; whether the nonprofit updates its conflictof-interest disclosures; salaries of highly compensated employees; and financial trends over time.

Keep in mind, due diligence is an art and a science. Smart giving goes hand in hand with due diligence. Some Chester County Community Foundation Board Members who also serve as attorneys can tell us more with their first-hand experience:

Understanding Your Clients’ Values

“I find it heartwarming to hear clients’ stories about end-of-year giving,” says Lou Teti, Esq., of Stevens & Lee. “It’s more than just a charitable contribution—it represents family values and an opportunity to reflect upon what matters to them. I encourage clients to think about their “legacy” and how they want to be remembered…what organizations or causes were important to them during their lifetime. The season of giving often sparks meaningful family conversations about this concept of legacy. When we integrate charitable giving into estate planning, we’re not just planning—we’re preserving values for generations to come. I am thankful

that my family has created the Teti Family Fund through the Community Foundation…although it is a relatively modest fund today, it provides an opportunity for Joann and our sons to grow our fund each year so that when we are gone, our children will be able to continue to support the charitable causes that are important to us and to them!”

Putting the “Family” in Family Philanthropy

“I like to talk to clients about multigenerational philanthropy,” says Emily Temple Abels, Esq., of Larmore Scarlett. “Family Philanthropy engages the whole family, oftentimes multiple generations, even children. This might mean each family member makes a small gift to a cause of their choice, or the whole family votes on a specific nonprofit to support. Because families have complex dynamics, so too may family philanthropy. The Community Foundation has expertise in this area, having worked with various families for 30 years on their grantmaking. Around year-end, it’s a great reminder that families can gather to make grant decisions or volunteer together for a meaningful day. This is important to me personally, and something I hope to inspire in my clients.”

Rely on Your Community Foundation

For Stephanie Pahides Kalogredis, Esq., of Lamb McErlane, the Community Foundation is personal. “My husband Bill and I established the Vasilios J. Kalogredis & Stephanie Pahides Kalogredis Foundation to further our financial support for education, the environment, human services, and religion. We rely on the Community Foundation to help our family find organizations who align with our values that would benefit from our support. The Community Foundation makes smart grantmaking seamless and effective. I love to tell clients about my experiences, so they know I genuinely support the Community Foundation’s mission and vision.”

Your local community foundation is the source of information on community needs and the local, regional, and national charities best positioned to meet those demands. The Chester County Community Foundation urges donors to give wisely and generously this season of giving. Strategic, planned donations can significantly increase the benefits and impact on the community for years to come.

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Visit www.chescocf.org to learn more about how the Chester County Community Foundation connects people who care with causes that matter, so their legacy makes a difference, Now & Forever.

Questions? Contact

Zebulun Davenport EdD., Board Chair

Karen Simmons, President/CEO

Jason Arbacheski, CAP, Director of Gift Planning and Stewardship

Chester County Community Foundation 28 West Market Street, West Chester, PA 19382 (610) 696-8211 | info@chescocf.org | www.chescocf.org

Where do you live? West Chester.

What was your first job? Warehouse worker, unloading trucks.

What word best describes you? Easygoing.

Where would we find you on a Saturday afternoon? Spending time with my children.

What is your favorite way to spend your free time? Golfing.

INITIAL CONSULT

James Doyle, Esquire

What is your greatest extravagance? Wine.

What is your favorite vacation destination? Bali.

What is your favorite food? Sushi.

Who is the person you are most interested in meeting? The Pope (or Tiger Woods).

What was the last book you read? Outlander, in anticipation of a trip to Scotland.

What is your favorite TV Show? Emily in Paris.

What goals do you still have that you have not achieved yet?

Visit one hundred different countries and territories.

What is a little-known fact about you? I lived in China, with my wife.

What is your favorite website? ESPN.

What would you be if you were not a lawyer?

A park ranger, surrounded by nature.

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

I can complete a Rubik’s Cube in less than two minutes.

What is your favorite thing about the bar association? The friendships.