The Legal Intelligencer Blog

Nearly 90 Percent of Quarter Sessions Employees Agree to Transition to FJD Staff

By Amaris Elliott-Engel
Of the Legal Staff

As the First Judicial District continues to merge the operation of the Clerk of Quarter Sessions, the clerk for criminal cases, into its own operation, 92 employees have agreed to leave civil service employment with the city of Philadelphia to become court employees. Thirteen employees have declined to make the transition, said Common Pleas President Judge Pamela Pryor Dembe.

The percentage of Quarter Sessions personnel transitioning to FJD employment is 87.6 percent. 

Mayor Michael A. Nutter has promised to find other city jobs for the employees who did not agree to become court-employed.

Employees moving into court employment are not taking pay decreases and will be paid the closest salary on the judicial pay scale to their current salary, Dembe said.

The court signed a memorandum of understanding with the city of Philadelphia, which allowed the clerk's budget to be used for payroll measures, Dembe said.

Vivian Miller, the last elected head of the office, retired March 31. She made that decision after court orders transferred the functions of the clerk's office from her office to the court's control. The row office still technically exists because City Council has not yet moved to abolish the elected position.

Dembe said the court put together a plan on how to maintain the office's operations if many employees did not stay in the job. Dembe referred questions on how the office would cover the work of the 13 employees to Prothonotary Joseph Evers, who also is running the Clerk of Quarter Sessions operation. Evers did not respond to a request for comment Wednesday.

A program to collect outstanding bail owed by absconding defendants also was started this week. Dembe said the program only became possible with a change of administration at the clerk's office because previously there was not complete record-keeping of how much alleged absconders owed in forfeited bail.

Sheriff's Office: Cutting Sheriff's Overtime May Affect Prison Population

By Amaris Elliott-Engel
Of the Legal Staff
 
In a memo sent to court leaders and obtained by The Legal, the Philadelphia Sheriff's Office said that some of its efforts to reduce its overtime bill require it to end some of the staffing patterns the office put in place to address prison overcrowding.

The Sheriff's Office is running more than $2 million in overtime and has been asked by the Nutter administration to reduce its overtime bill by 25 percent.

Chief Deputy Sheriff Barbara A. Deeley said in the memo that the office has already reduced its overtime expenses by $150,000 with several measures:

* reducing the number of deputies assigned to Family Court;

*dividing Traffic court personnel into two shifts in order to accommodate Traffic Court's evening hours;

*rotating deputies in courtrooms, rather than assigning deputies to specific courtrooms;

*ending the practice of redeploying evening security personnel to work in the Criminal Justice Center during the day.

Deeley, however, said: "We would like to make it clear to the court, however, that this new plan will discontinue many of the staffing patterns put in place two years ago in an effort to address the overcrowded prison population."

Deeley said those arrangements included transporting more defendants because more courtrooms were being scheduled and transporting defendants starting one hour earlier in the morning. The office met the need by redeploying deputies assigned to evening shifts to work during the day, and staffing for the evening shifts was accomplished through overtime pay, Deeley wrote.

Labor Department Extends FMLA to Cover Lesbian, Gay, Bisexual and Transgender Parents

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

On June 22, the U.S. Department of Labor clarified the definition of "son and daughter" under the Family and Medical Leave Act to ensure that all employee-parents, regardless of legal or biological relationship, may obtain family leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition.

The FMLA permits an ”eligible” employee to take off up to 12 work weeks in any 12 month period for the birth or adoption of a child, to care for a family member with a serious health condition, or if the employee has a serious health condition. The FMLA covers employers of over 50 employees within 75 miles of a company worksite, where at least 50 employees work 20 or more workweeks in the current or preceding calendar year.

The DOL interpretation extends FMLA coverage to many non-traditional families, including families in the lesbian-gay-bisexual-transgender community. A DOL press release declared this a “victory” for those employees who previously have been denied leave to care for their loved ones.

 Employers covered under the FMLA that do not already permit family leave to LGBT employees should immediately update their FMLA policies to reflect this new interpretation of the law.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson. Readers can contact Meyer via e-mail and follow him on Twitter.

For the First Time, City of Philadelphia Commits Dollars to Fight Witness Intimidation

By Amaris Elliott-Engel
Of the Legal Staff
 
Philadelphia District Attorney Seth Williams' request to receive an extra $400,000 for his office next fiscal year to address witness intimidation did not get very far— until now. For the first time the office has received city funds, a total of $200,000,  to address the growing problem of witness intimidation.

Williams previously said he would like to use $400,000 to relocate 20 additional families a year and create a dedicated witness intimidation prosecution team of three senior prosecutors and at least two detectives.

The $200,000 will be used to help fund the District Attorney's Office's witness protection program, according to an announcement today by Williams and Mayor Michael A. Nutter. State funding for witness protection has continued to be cut in tough fiscal times.

Nutter also has announced a plan to convene a summit to solicit "input and cooperation on innovative ways" to address the issue of witness intimidation.

Growing media and legislative attention has been brought to the issue of witness intimidation and how it impacts the handling of the city's most serious criminal cases, including interest in reinstating the indicting grand jury, the development of a witness intimidation bench book to provide a resource to judges on how to curtail witness intimidation in their courtrooms, a proposed change to the Philadelphia Home Rule Charter introduced by City Councilman Curtis Jones that would authorize City Council to impose a fine for defendants convicted for witness and victim intimidation, and federal legislation introduced to make it a federal offense for witnesses in state court proceedings to intimidate or threaten a witness.

State Rep. Brendan F. Boyle, D-Phila., introduced legislation last week to increase funding for state funding for witness protection.

Supreme Court Decision Provides Insurers Latitude to Argue Offset in UM/UIM Arbitrations

Could in Turn Provide "Reasonable Basis Defense" in Bad Faith Litigation

In what one would think would provide additional “reasonable basis” cover for an insurer in bad faith litigation, the Pennsylvania Supreme Court last month ruled in Tannenbaum v. Nationwide Insurance Company that an insurer could successfully argue income loss benefits provided under both group plan and personal disability  policies could be used to offset what would otherwise  be recoverable income loss benefits in UM/UIM arbitrations.   In so doing, the Court begain its analysis by examining § 1722 of the Motor Vehicle Financial Responsibility Law, entitled “Preclusion of Recovering Required Benefits” which provides:

In any action for damages against a tortfeasor, or in any uninsured or underinsured motorist proceeding, arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter, or workers' compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719 (relating to coordination of benefits) shall be precluded from recovering the amount of benefits paid or payable under this subchapter, or workers' compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719. (emphasis added)

 Justice Saylor, in writing for the majority, held that under simple wording of the statute, the leglislative purpose was to  to remediate spiraling insurance costs.  The disability benefits at issue received by Tannenbaum, he found,  fell within with the group/program  arrangement classification within § 1722 and, therefore,  having fallen into such a  classification,  precluded their  re-recovery in a UM/UIM proceeding as Nationwide had successfully  argued in a UM/UIM arbitration in that case. 

Trial court and Superior court rulings reversing a panel of arbitrators’ offset consistent with Nationwide’s argument were reversed, and the court held, “in summary under section 1722’s plain terms, an insured’s recovery under UM/UIM policies may be offset by group/program/arrangement benefits including disability benefits purchased in whole or in part by the insured at least so long as those benefits are not subject to subrogation.” 

So, how and why does an opinion dealing with UM/UIM arbitration and the Pa.M.V.F.R.L. belong in a blog dealing with insurance bad faith?  Because six to seven  out of every ten bad faith claims I am asked to defend arise out of the handling of UM/UIM claims, and claims handling, including UM/UIM claims handling, is the factual focus of all fad faith claims. The law affecting how those claims are to be handled  is in  a constant state of flux,  and the Tannenbaum decision represents a recent and a significant pronouncement in terms of the litigation of UM/UIM claims. 

It is fairly widely considered now, and has been for some years,  that UM/UIM proceedings are adversarial as between an insurer and an insured.  See, e.g., Condio v. Erie Insurance Exchange, 899 A.2d 1136, 2006 Pa. Super. 92.  As such, insurers are entitled to look after their interests,  at least to the same degree that they are required to look after the interest of their insureds.  The courts are bound, therefore, from time to time, to  take up the question of whether and how an insurer is entitled to argue damages defenses in UM/UIM proceedings.  Tannenbaum presented the specific question of whether , if an insured is receiving income loss benefits from a group or disability plan, those benefits could  and should be used to offset income loss benefits under a UM/UIM policy which are recoverable in a UM/UIM settlement or arbitration, and, consequently whether, in the context of a bad faith analysis, whether it is reasonable for an insurer is reasonable to make such an argument.  

Assuming, of course, in the particular case considered, there is evidence of such collateral sources of income loss benefits, and that benefits were paid under such collateral sources, such evidence combined with the rather clear pronouncement in the Tannenbaum case would appear to provide sufficient cover for insurers to make the argument that there is a valid basis to claim an  offset pursuant to 75 Pa.C.S.A § 1722.  It would further appear that such an argument can be made now, both during the UIM settlement negotiation and arbitration proceedings. 

I welcome feedback from readers, along with any suggestions for topics you would like to see discussed in this space.  Please e-mail me at chaddick@dmclaw.com.

Circuit Precedent? What Circuit Precedent?

 By Bruce P. Merenstein

Numerous procedural and jurisdictional issues that federal court practitioners confront on a daily basis have yet to be addressed by the Supreme Court.  Thus, these issues are governed by the law of the U.S. Circuit Court of Appeals in which a case is pending and lawyers dealing with these threshold issues — involving such matters as statutes of limitations and the timeliness of appeals — must stay abreast of circuit precedent to avoid missing deadlines or facing other procedural pitfalls.

Yet, a couple of recent decisions from the 3rd U.S. Circuit Court of Appeals and from the 9th Circuit demonstrate that compliance with circuit precedent may not be enough.  Rather, practitioners must be aware of potential Supreme Court decisions in the pipeline that may overturn circuit precedent, and may even have to consider the possibility of a Supreme Court decision down the road — in a case not even on the horizon — disrupting settled expectations arising from circuit precedent.

First, the 9th Circuit case.  In United States ex rel. Haight v. Catholic Healthcare West, the plaintiffs brought a qui tam action against a number of health care providers under the federal False Claims Act.  Under the act, the United States has a right to intervene but can choose not to do so, as it did in Haight.  The district court eventually granted defendants’ motion for summary judgment, and 51 days later, plaintiffs filed a notice of appeal to the 9th Circuit.

Under Rule 4(a) of the Federal Rules of Appellate Procedure, a notice of appeal in a civil case must be filed within 30 days of a final judgment, unless “the United States or its officer or agency is a party,” in which case the notice of appeal must be filed within 60 days.  At the time plaintiffs filed their notice of appeal — October 4, 2007 — the 9th Circuit precedent provided that the 60-day time period applies in all qui tam cases, even when the United States declines to intervene in the case. This 9th Circuit rule was also the rule in two other circuits.

On the other hand, one circuit had a longstanding contrary view — the 30-day rule applied when the United States declined to intervene in a qui tam action.  Shortly after the notice of appeal was filed in Haight, the 2nd Circuit joined the minority view that the 30-day rule applied.  And in January 2009, more than a year after the plaintiffs in Haight had filed their notice of appeal in reliance on the Ninth Circuit’s 60-day rule, the Supreme Court granted a petition for certiorari to resolve the circuit split.

The Supreme Court issued a unanimous opinion five months later, holding that the 30-day period applies when the United States does not intervene in a qui tam action.  Meanwhile, back in the 9th Circuit, the Haight appeal remained pending.  You can guess what happened next.  The 9th Circuit, applying the Supreme Court’s new precedent, dismissed the Haight appeal as untimely, as it had been filed 51 days after the final judgment was entered.  Of course, when that appeal was filed two years earlier, the extant law of the 9th Circuit was that such an appeal was timely if filed within 60 days of the final judgment.

The 3rd Circuit recently addressed a similar issue, but this one involved not the timeliness of an appeal but the timeliness of the underlying action itself.  In 1994, the Supreme Court decided the seminal case of Heck v. Humphrey, in which the court held that a claim for malicious prosecution under 42 U.S.C. § 1983 accrues only after a conviction has been reversed or effectively nullified.  Two years later, in Smith v. Holtz, the 3rd Circuit extended this rule to future prosecutions, so that a claim under § 1983 would not accrue until a prosecution had been brought and the conviction vacated.

In the recent 3rd Circuit case, Dique v. New Jersey State Police, the plaintiff brought a § 1983 action in 2004, within the two-year limitations period of when his claim accrued under the 3rd Circuit’s rule established in Smith.  Three years later, however, in Wallace v. Kato, the Supreme Court rejected the Smith rule and held that a § 1983 claim for false arrest accrues at the time of arrest, and not after a possible future conviction is vacated.  For the Dique plaintiff, this meant his claim accrued in 2001, or three years before he filed suit.  Thus, under the new rule established by the Supreme Court three years after the Dique case was filed, plaintiff’s claim was untimely. Once again, a party complied with well-established circuit precedent only to be foiled many years later when the Supreme Court adopted a contrary rule. 

The lesson from these cases is that, when faced with an issue not yet addressed by the Supreme Court, a practitioner must consider not only circuit precedent, but also contrary rules from other circuits.  In short, since it is always better to be safe than sorry, lawyers would be well advised to file cases or appeals within the timeframe of the most conservative possible interpretation of the relevant rule or statute, even if that period is shorter than circuit precedent dictates.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts.

www.schnader.com

Beyond a Reasonable Doubt: Be Sure the Strategies You Employ Don’t Hurt Your Case

A 1966 shooting and a 2007 death

I recently had the pleasure of doing some pro bono work on a criminal trial that had quite a bit of exposure in the media.  The case involved a police shooting on Nov. 27, 1966, and I was working with the defense. On that day in 1966, the defendant, William Barnes was in the process of trying to rob a beauty supply store. He was approached by a young, rookie cop, Walter Barclay, who was all of 23. Barnes shot Barclay twice, rendering him paraplegic. 

Fast forward. Walter Barclay died of sepsis caused by a urinary tract infection (a known complication of paralysis) in 2007. Barnes, who had been arrested, tried and convicted for causing Barclay’s injuries in 1966 was arrested again. This time for murder.  What the jurors had to decide was whether the shots fired in 1966 were the cause of Walter Barclay’s death more than 40 years later. The prosecution had to show an unbroken causal chain of events from the shooting to the death. The jurors were not told that Barnes already served a jail sentence for the original shooting because the judge ruled that this was irrelevant to the question of cause. Cause was cause.

The Opening

There were enough lessons learned in this case for many columns, but one stood out above the rest. It came from the prosecutor’s opening.  At the beginning of the trial, the prosecutor stood up and told the story of the shooting that happened on November 27. “On November 27, William Barnes shot Walter Barclay.” She repeated the date, just as written, several times. Notice anything missing?  In the entire prosecution opening, not once did she mention the year. Not once. 

I am quite sure that her intended message was that the year did not matter. Whether the death happened a minute later, a week later, a year later, or forty years later, if Barnes caused the death, it is murder. But she didn’t say that. She just left out the year.  Instead of the intended message, the message that came across was that the prosecution was willing to withhold important parts of the story (because whether or not the prosecution thought the year was relevant, the jurors  most likely did) in order to make their case.

As someone who does work primarily in the civil litigation arena, this process was fascinating to me and certainly reinforced some key strategic principles that apply to all cases.  Whenever making your arguments it is rarely helpful (I actually can’t think of any instances when it would be, but I never say never) to withhold key pieces of information that the other side will bring out. It unfailingly rubs jurors the wrong way and leads them to lose trust in you. Also, when you are going to take strategic risks, make sure those risks pass “the Doberman test.” It is a simple test in which you critically assess the strategy to make sure it will not come back to bite you in a very uncomfortable place. Even if you don’t have the resources to mock try a case, share the strategy with colleagues, your mother in law, anyone who may be able to see the strategy from a different perspective.  If you are going to take these kinds of risks, you have to be sure they are going to work.  In this case, the omission in the opening set a tone for this trial. One that, coupled with the myriad medical documents and intervening car and wheelchair accidents that jurors decided “broke the chain” of causation, the prosecution could not overcome. Verdict: Not guilty.

 A Side Note

On a side note, after the trial was over, I watched a clip of an interview Seth Williams gave on Good Day Philadelphia about this trial. To my dismay, Williams accused the jurors of not attending to the evidence, but giving a verdict based on the fact that William Barnes was an old man. I watched it twice. Yes, I heard it right.

This jury, full of educated and articulate people (I know because I helped select them) took a week out of their lives for this trial. They sat and paid attention to every piece of testimony and listened carefully to both sides’ openings and closings (I know because I watched them). They could have come to a quick verdict on a Friday afternoon, but chose to come back the next Monday to give themselves more time to go through the evidence and come to a thoughtful decision (I know, because I waited for that verdict), and as a result, they are accused of making a decision based on the fact that Barnes was old?  I watched it a third time. Yup, he said it.

As a jury consultant and juror advocate, I think that it is important that we show that we value and respect jurors’ decisions, even if we don’t like the decision made. Going on television and making such an accusation sends the citizens of this community a message that their work as jurors is only valued when they make a decision that our DA likes. I think Williams owes each and every one of those jurors an apology. Yup, I said it.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on close to 200 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. 

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Gomez at melissa@mmgjury.com or call 215-292-7956.

Melissa M. Gomez, Ph.D.
MMG Jury Consulting, LLC
www.mmgjury.com

Dechert Grabs Head of Fried Frank Financial Institutions Group, Two Others

By Gina Passarella
Of the Legal Staff

Dechert has added three heavy hitters in Washington, D.C., from Fried Frank Harris Shriver & Jacobson’s office there.

The firm brought on Thomas P. Vartanian, who headed up Fried Frank’s financial institutions transaction group, along with partners David L. Ansell and Robert H. Ledig.

Dan Binstock, managing director of BCG Attorney Search in Washington, said the departure of Vartanian, Ansell and Ledig “does hurt” Fried Frank.

He said Dechert is known for its investment management practice and was probably a draw for the group for that reason. He said the addition was “definitely a good catch” for Dechert in a time when it looks like the regulatory environment regarding private equity groups and hedge funds will be increasing.

Vartanian, Ansell and Ledig have worked together for more than 25 years counseling commercial and investment banks, holding companies, housing-oriented government-sponsored enterprises, or GSEs, broker-dealers, private equity investors, hedge funds, credit unions, technology companies, state governmental entities and financial trade associations.

“We are pleased to welcome such a dynamic team to the firm,” Dechert Chairman Barton J. Winokur said in a statement. “Tom, David, and Bob enjoy high-industry profiles, and together they form one of the premier bank regulatory practices in the United States. This is a critical time for the industry as it faces a sea change in the regulatory environment. Their shared talents and experience will further enhance our brand as a leader in the representation of financial services firms.”

Vartanian advises clients in the financial services industry in a wide variety of matters, including mergers and acquisitions and private equity transactions; reorganizations, recapitalizations, and acquisitions of distressed banks; purchases from the FDIC as receiver for failed institutions; and matters involving GSEs. Vartanian previously served as general counsel of the Federal Home Loan Bank Board and the Federal Savings and Loan Insurance Corporation.

“Our areas of focus are well-suited to the firm’s established practices and global resources, and we believe our clients will be well-served by this move,” Vartanian said in a statement.

Ansell advises financial services companies on the formation and execution of corporate transactions, particularly with bank regulatory matters. Ledig advises financial institutions on corporate, regulatory and enforcement and litigation issues.

McCarter & English Adds Klehr Harrison Partner for Phila. Office

By Gina Passarella
Of the Legal Staff

McCarter & English added Klehr Harrison Harvey Branzburg partner Richard S. Roisman to its Philadelphia office earlier this month.

The addition brings the firm’s Philadelphia outpost to just under 20 attorneys and follows on the heels of the firm’s hiring of corporate partner F. Traynor Beck in the city six months ago.

“We are extremely pleased that Richard is joining the firm,” Joel Horowitz, managing partner of the Philadelphia office, said in a statement. “I have known Richard for many years, and his experience in handling all types of sophisticated real estate and commercial financing will enhance our transactional capabilities in the Philadelphia region, which have already grown significantly with the recent addition of Tray Beck to our corporate practice.”

Roisman’s practice focuses on real estate, commercial and corporate finance on behalf of debtors and creditors.  In March, Roisman was part of a Klehr Harrison team that assisted on one of the first commercial mortgage-backed securities deals done since that market dried up in 2008.

The refinancing of Keystone Property Group's Keystone Summit Corporate Park in Cranberry Township, Pa., marked the first time in two years the market has seen a multiple borrower, commercial mortgage-backed security offering. Klehr Harrison represented Keystone on the deal.

Efforts to Merge Quarter Sessions Move Ahead

By Amaris Elliott-Engel
Of the Legal Staff
 
The First Judicial District and the city of Philadelphia are working on the details of bringing the clerks who work in the city's criminal clerk's office into judicial employment and off the city payroll by July, Philadelphia Common Pleas President Judge Pamela Pryor Dembe said.

The details include maintaining the pay scales and the benefits the clerks currently have, the judge said. The clerks are almost all in the civil service, while FJD employees are not civil service workers.

The FJD took over the Clerk of Quarter Sessions April 1 after the elected head of the office, Vivian Miller announced her retirement as of March 31 and judicial orders were made that the duties of the clerk for Philadelphia's criminal cases would be assumed by the FJD. Prothonotary Joseph Evers and his staff became the new managers of the office.

The clerk's position still exists on the books, but legislation may be introduced later this year to eliminate the role.

Before Miller's retirement, she weathered a year of criticism leveled at her performance in office, particularly allegations of  recordkeeping lapses and poor management of the bail system.