The Legal Intelligencer Blog

Attorney Disagrees Precedent Pre-empts Judicial Retirement Suit in Commonwealth Court

By Amaris Elliott-Engel
Of the Legal Staff

During Pennsylvania Supreme Court oral arguments in two lawsuits challenging mandatory judicial retirement, Justice J. Michael Eakin asked about another lawsuit currently pending in the Commonwealth Court and whether all three cases could be tossed because the high court, in Gondelman v. Commonwealth, has previously rejected a constitutional challenge to mandatory retirement.

J. Bart DeLone, a senior deputy attorney general who argued against overturning the retirement requirement in both the Supreme and Commonwealth courts, said in response to Eakin that Gondelman does control all three cases.

However, one of the attorneys for the judicial plaintiffs in the Commonwealth Court case said in an interview that their lawsuit differs from the two lawsuits taken up by the Supreme Court under its extraordinary jurisdiction.

Tom Groshens, of Sprague & Sprague, said in an interview that “our case includes claims by qualified voters who contend that mandatory retirement deprived them of the efficacy of their vote for [Commonwealth Court Senior] Judge [Rochelle S.] Friedman for a 10-year term because that 10-year term was cut short by three years.” The lawsuit also involves a challenge to the 2001 constitutional amendment that changed the mandatory retirement from the birthdays on which judges turn 70 to the end of the year in which judges turn 70.

Some judges get to serve longer than others just because of when their birthdays fall, which is “amplified discrimination,” Groshens said.

Further, the presiding judge in Commonwealth Court, Senior Judge James Gardner Colins, said that he was not sure Gondelman applies to all the theories in the Friedman suit – “indeed, the people elected the individual jurists to a 10-year term,” Groshens pointed out.

When asked for comment, a spokesman for the Attorney General’s Office referred The Legal to the government’s brief.

The presence of the three voters is beside the point, because they “are presenting the same claim that the Supreme Court rejected in Gondelman,” DeLone, Attorney General Kathleen G. Kane and John G. Knorr III, chief deputy attorney general, wrote in the Commonwealth Court brief.

While the plaintiffs claim the 2001 amendment “exacerbates the violation of Article I,” the state’s brief said. “But this, too, can make no difference: the holding in Gondelman is that in forming or altering their government, the people are not constrained by the provisions of Article I,” which spells out the fundamental rights Pennsylvanians have under the state constitution.

The Legal’s full coverage of the oral arguments can be read here.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

Orie Melvin's Resignation Official Today

By Amaris Elliott-Engel
Of the Legal Staff

Suspended Justice Joan Orie Melvin's stint on the Pennsylvania Supreme Court is over today.

In March, Orie Melvin, who was convicted of political corruption earlier this year, resigned from the high court. The resignation is effective today. Orie Melvin's sentencing is scheduled in Allegheny County Court of Common Pleas for May 7. The Legal is set to cover the sentencing.

Governor Tom Corbett now has 90 days to nominate a lawyer or judge to serve on the high court until Orie Melvin's seat can be placed on the ballot for the 2015 election. Two-thirds of the state Senate must vote in favor of the interim justice. Republicans control the upper house but do not have enough party members to muster two-thirds on their own. The Senate Democratic leadership has stated that a more moderate nominee from Corbett is necessary in order to garner their party support.

Members of the Supreme Court have differed on whether the court would appoint an interim justice on its own. Justice J. Michael Eakin has commented that while he thinks the high court has the power to appoint an interim justice, he does not think the court will do it out of respect for the separation of powers between the branches of government. In contrast, Chief Justice Ronald D. Castille has said the court would consider appointing a senior judge.

What all agree on is that having three-three splits from a six-member court on important legal issues is a bad thing.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

Reporter's Notebook: Pro Bono Program May Help Traffic Court Image

By Amaris Elliott-Engel
Of the Legal Staff

As part of reporting a story on the future of the Philadelphia Traffic Court after allegations of ticketing-fixing have become widely publicized, I learned about an upcoming program that is aiming to help ex-convicts set up payment plans for past traffic infractions in order to get their driver’s licenses restored. The full story on the Pennsylvania Supreme Court weighing the future of Traffic Court can be found here. 

One new program that has its auspices from people outside of the FJD may help public perception of the court, Philadelphia Court of Common Pleas Judge Gary Glazer, administrative judge of the Traffic Court, said.

Two students from Temple University’s Beasley School of Law, under the supervision of Montgomery McCracken Walker & Rhoads attorneys, including Ellen Brotman, are going to work with ex-convicts on setting up payment plans for past traffic tickets so that they can get their driver’s licenses restored.

U.S. Magistrate Judge Timothy R. Rice of the Eastern District of Pennsylvania, one of the judges presiding over a court that gives federal prisoners a break on their prison terms if they successfully complete reentry court, said the idea for the program came about because so many of the reentry court participants have past traffic infractions that built up fines while they were incarcerated.

Not having a driver’s license is the biggest impediment, besides not having a general equivalency diploma, for former defendants getting jobs, Rice said.

Many employers will hire people who have been convicted of felonies, but they need licenses in order to get to work, Rice said.

“It has the potential to be a marvelous addition and help to the system,” Glazer said.

Rice also said that, while the program will initially focus on helping reentry court participants, that the program may expand to help other defendants.

(In full disclosure, Rice is teaching a course in which the author of this blog is enrolled.)

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is the state Supreme Court mulling the “error in judgment rule” in medical malpractice cases. As reporter Ben Present writes, an attorney representing the estate of a two-month-old baby who died from a viral infection of the heart told the court Wednesday that the trial court’s jury instruction discussing the rule reflected precarious legal terrain.

Below the fold on Page 1, reporter Zack Needles writes that the state Superior Court has denied Cozen O’Connor’s request to reopen a discontinued suit filed against it by former Wolf Block attorneys in order to get a ruling that the statute of limitations wasn’t tolled.

In more Regional News on Page 3, reporter Saranac Hale Spencer writes that the Third Circuit has suggested that U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania amend the time limit he imposed for an upcoming trial.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a Franchise Law column on Page 5, Craig R. Tractenberg writes a report from the Restaurant Development and Finance Conference that took place in Las Vegas.

In a Legal Marketing column on Page 7, Abby Raanan and Jennifer Smuts write about building relationships and the value of alumni programs.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Wednesday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is the state Supreme Court ruling that “highly reckless” conduct is an affirmative defense in products liability cases. As reporter Zack Needles writes, it requires defendants to show that a plaintiff’s highly reckless conduct was the sole or superseding cause of the plaintiff’s injuries.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes that attorneys may become mandated reporters of child abuse if one of the recommendations suggested by a task force created in the wake of the Jerry Sandusky and Archdiocese of Philadelphia priest sex-abuse scandals is passed into law.

Below the fold on Page 1, reporter Gina Passarella writes that a federal court refused to disqualify William Pietragallo from representing a defendant in a case in which he had previously contemplated representing the plaintiff.

In more Regional News on Page 3, Zack Needles writes that Spector Gadon & Rosen has started an energy and environmental practice group with the addition of environmental lawyer Kermit L. Rader, who will chair the group.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In this week’s GC Mid-Atlantic column on Page 5, Julie A. Uebler writes about what employers can do to decrease the risk of employment litigation.

In a Trusts and Estates column on Page 7, Robert H. Louis writes about planning in an uncertain planning environment as we come to the end of 2012.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

State Supreme Court to Expand Public Access to Court Finances

By Ben Present
Of the Legal Staff

Journalists and interested Pennsylvanians will soon have easier access to more financial information for the state’s trio of appellate courts and their administrative offices, the state Supreme Court ordered Thursday.

The Administrative Office of Pennsylvania Courts said in a press release that it would be expanding Rule of Judicial Administration 509 to include expenditure and personnel salary information for the Commonwealth, Superior and Supreme courts on a website expected to be made available by the middle of next month.

The release noted the Supreme Court’s decision to expand access to its finances was aligned with the goals espoused by recent legislation aimed at providing Pennsylvanians with more information about government spending.

“The expansion of the fiscal disclosure policy is consistent with the principles of the recently enacted (Pennsylvania Web Accountability, Transparency and Contract Hub) Act, balanced with the Supreme Court’s constitutional authority to independently administer the judicial branch,” the press release said. “Like this action by the Supreme Court, PennWATCH is aimed at fostering accountability and transparency by mandating the posting of state government expenditures and compensation on a searchable website.”

In 2009, the Supreme Court created a website offering search options for summaries of state court contracts and purchases of $5,000 or more. Thursday’s order expands Rule 509 on a number of levels. Among the financial records that will be contained on the website, according to the release:

• Appropriation names, descriptions and annual funding amounts.
• Expenditure data, including the names and addresses of the person or entity receiving payment, how much, and the applicable appropriation and fiscal year.
• Annual salaries for court positions (updated monthly), total compensation for the prior year.

The individual names tied to each position will not be listed on the website “out of concern for employee security and respect for personal privacy,” the release said.

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is the Third Circuit restating its prediction that the Restatement (Third) of Torts, not the Restatement (Second), will be adopted in Pennsylvania by the state Supreme Court. As reporter Amaris Elliott-Engel writes, some district courts have said the Restatement (Second) should apply because the high court has not affirmatively adopted the Restatement (Third).

Also above the fold on Page 1, reporter Ben Present writes that Jerry Sandusky filed post-sentence motions arguing the judge presiding over his trial denied him due process by failing to grant him several motions for a continuance before his June trial.

Below the fold on Page 1, reporter Gina Passarella writes that the state Supreme Court has ruled that the state’s Coroner’s Act does not give a county coroner the discretion to deny a request for immediate disclosure of someone’s manner of death.

In more Regional News on Page 3, a former Dechert associate’s retaliation claim has been allowed to proceed in a case alleging the firm’s “macho culture” caused his work troubles.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a Family Law column on Page 5, James W. Cushing writes that substantial evidence must be used to convince the court in child abuse cases based on a recent case that profoundly changed the burden of proof to have someone listed on the ChildLine and Abuse Registry as a perpetrator of child abuse.

In a Bankruptcy Update on Page 7, Eric Scherling writes that the Third Circuit has protected post-confirmation appeals in the case of In re Philadelphia Newspapers.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal and Pa. Law Weekly

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Also inside of today’s paper is this year’s GC Compensation supplement, analyzing the pay packages for the state’s top-paid general counsel and looking at say-on-pay’s effect two years later.

The top story in today’s Legal is the death of former U.S. Senator Arlen Specter. As reporter Amaris Elliott-Engel writes, lawyers said Specter was a legal giant who greatly shaped the federal judiciary in the state for more than three decades.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that a company must turn over financial documents in a commercial suit regardless of its argument that some of them have “confidential financial information.”

In more Regional News on Page 3, Saranac Hale Spencer writes that a federal judge has ruled that most of the communication between a plaintiff and his former lawyer is covered by attorney-client privilege during the man’s deposition in a suit he filed against his business partners and their lawyer.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

In a Legal Marketing column on Page 5, Stacy West Clark says if you want to be successful, create a personal brand.

In an Asset Management column on Page 7, Anthony B. Creamer III writes about greater scrutiny on fair value in financial reporting.

Today’s lead story in PLW is a preview of oral arguments beginning today. As reporter Ben Present writes, the slate includes landmark cases regarding text messages and the Marcellus Shale.

Below the fold on Page 1, Saranac Hale Spencer writes that legislative immunity bars a suit over the “Year of the Bible” proclamation made by members of the state House of Representatives.

On Page 3, Ben Present writes that SEPTA has been spared a subrogation lien by the Pennsylvania Supreme Court.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he writes about judges promoting books; Matthew Weisberg’s Professional Liability column about withdrawing as counsel while avoiding conflicts of interest; and David G. Mandelbaum’s Environmental Law column about institutional controls and pre-enforcement review in cleanup cases.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Monday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is a $1.79 million counterclaim being tossed in the family courthouse lawsuit. As reporter Amaris Elliott-Engel writes, Allegheny County Court of Common Pleas Senior Judge R. Stanton Wettick Jr., who is presiding over the suit, ruled that an attorney’s corporate entity cannot recover the amount from the First Judicial District for alleged unjust enrichment.

Below the fold on Page 1, reporter Zack Needles writes that the state Supreme Court has agreed to hear arguments on the summary judgment threshold in an asbestos case.

In more Regional News on Page 3, reporter Gina Passarella writes that a Philadelphia Court of Common Pleas judge has said his ruling in the campaign debt case of U.S. Representative Bob Brady has had a chilling effect.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a Litigation column on Page 5, Abraham J. Gafni asks whether there is a settlement negotiation privilege.

In this week’s Law Technology News page, Craig Ball writes that clients are suffering from a low technology bar among lawyers.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Supreme Court Denies Law Firms' Amicus Request in Le-Nature's Suit

By Gina Passarella
Of the Legal Staff

The state Supreme Court has denied a group of law firms’ request to file an amicus brief in support of K&L Gates’ appeal in a $500 million lawsuit against it by the Le-Nature’s trustee.

The 14 law firms had filed an amicus brief when K&L Gates asked the Pennsylvania Superior Court to reconsider its decision to reinstate trustee Mark Kirschner’s malpractice suit against K&L Gates. That suit, seeking $500 million in damages for the law firm’s alleged failure to detect fraud at Le-Nature’s three years before that fraud bankrupted the beverage maker, was thrown out by an Allegheny County Court of Common Pleas judge.

When the Superior Court denied the motion for reconsideration, K&L Gates appealed to the Pennsylvania Supreme Court. While the Supreme Court has denied the law firms’ request to file an amicus brief, it has not yet ruled on K&L Gates’ allocatur petition.

K&L Gates was hired by a special committee of the Le-Nature’s board in 2003 to investigate whether there was fraudulent activity by certain of the company’s executives. K&L Gates found no evidence of fraud, but three years later the company went into bankruptcy and its president was later convicted of fraudulent financial practices and sentenced to more than 20 years in prison.

K&L Gates and accounting firm Pascarella & Wiker had argued the firms only had a duty to the special committee of Le-Nature's that hired them in 2003, and not to a trustee of the now-bankrupt company. Allegheny County Common Pleas Senior Judge R. Stanton Wettick Jr. agreed, finding they had no obligation beyond the special committee and that the trustee could not claim damages for deepening insolvency of the company between the 2003 internal investigation and the 2006 collapse of the company.

But Superior Court Judge John L. Musmanno said in his opinion that the special committee had a duty to the company and K&L Gates was providing legal services to Le-Nature's through the special committee.

"K&L Gates was retained to investigate the exact type of injury being inflicted upon Le-Nature's," Musmanno said. "By negligently conducting its investigation, K&L Gates affirmatively caused harm to Le-Nature's by concealing the looting of the company and wrongdoing by [former CEO Gregory J.] Podlucky, and affirmatively representing that no evidence of fraud or misconduct existed."

The amici law firms had argued in their brief to the Superior Court that “for the first time,” the court ruled “an implied attorney-client relationship could be inferred from circumstantial evidence even where two sophisticated parties have entered into a representation agreement that expressly disavows that such a relationship exists.” They argued the engagement letter between K&L Gates and the special committee expressly disavowed any relationship between the law firm and Le-Nature’s.

The law firms that signed on to the brief were Conrad O'Brien; Dechert; Dickie, McCamey & Chilcote; Fox Rothschild; Hawke McKeon and Sniscak; Lamb McErlane; Margolis Edelstein; McNees Wallace & Nurick; Morgan, Lewis & Bockius; Rhoads & Sinon; Schnader Harrison Segal & Lewis; Stevens & Lee; Stradley Ronon Stevens & Young; and Swartz Campbell.