The Legal Intelligencer Blog

Fresh Ink: Inside Today's Legal

Welcome to your Thursday 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 reporter Zack Needles’ look into two recent resignations in the state Department of Environmental Protection, which lawyers say is not uncommon after a change in the gubernatorial administration. Reports by the Pittsburgh Post-Gazette regarding the July resignation of longtime regional counsel Diana Stares and the November resignation of her successor, William Darr, indicated that Stares was forced out and Darr’s hiring was a political move that wasn’t properly vetted. But attorneys familiar with the inner workings of the agency told The Legal they were skeptical of allegations that there were nefarious motives behind the moves.

Also above the fold on Page 1, reporter Gina Passarella writes about the struggles faced by Rutgers School of Law-Camden, which suffered a 15-spot drop in the most recent U.S. News & World Report law school rankings. The school is still dealing with the fallout from the proposed merger with Rowan University.

Below the fold on Page 1, The Legal’s newest reporter, Saranac Hale Spencer, writes about an Eastern District of Pennsylvania case in which a judge ruled that allegations that a former chief technology officer sabotaged a planned merger by sending secure information to potential suitors did not bring into play the protections of the federal Computer Fraud and Abuse Act.

In more Regional News on Page 3, reporter Ben Present writes that a state Superior Court panel has ruled that a lawsuit brought against Parx Casino belongs outside Philadelphia, despite the plaintiff’s wishes.

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.

On the Paralegals Page on Page 5, Christine M. Flynn writes about TIPS – Trial Issues and Practical Solutions – for paralegals, including formulating a plan, confirming witnesses and checking supplies.

As it is Thursday, this week’s Young Lawyer column is on Page 7, as Michael J. Joyce writes about appreciating the momentum created by smaller victories. The little wins can often turn into bigger wins down the road, Joyce writes.

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 Thursday 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 on a busy news day is the state Supreme Court sounding off on the gaming licensing process. As reporter Gina Passarella writes, the justices took an opportunity during oral argument in an appeal of a Category 3 slots license to challenge the state Gaming Control Board on transparency issues the jurists admitted were not before them. As Justice Seamus P. McCaffery said, “This court has been criticized as a quote-unquote ‘rubber stamp’ for the Gaming Board.”

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes that the justices mulled the topic of expert testimony about eyewitnesses while hearing oral argument yesterday. The state Supreme Court is being asked to allow trial courts to permit expert scientific testimony on human memory and perception in criminal cases involving eyewitnesses.

Below the fold on Page 1, Gina Passarella writes that the distribution of fliers at an elementary school inviting classmates to a Christmas party at her church are protected by the Tinker standard. U.S. District Court Judge A. Richard Caputo of the Middle District of Pennsylvania upheld his initial decision in K.A. v. Pocono Mountain School District following the school district’s motion for reconsideration. The suit alleged the school district violated K.A.’s First and 14th Amendment rights by prohibiting her from passing out the fliers.

In more Regional News on Page 3, John Caher of Legal affiliate New York Law Journal writes that a judge has tossed a breach of contract suit against the artist who created the “LOVE” sculpture in Philadelphia’s Love Park.

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.

As it is Thursday, this week’s Young Lawyer column is on Page 5, as David Koller writes about dealing with the legal profession’s “terrible triad” - the sigh, eye roll and face rub that he sees so often from more senior lawyers.

In a commentary on Page 7, Scott A. Coffina writes about the Stock Act and a legislative battle that has developed in Congress in an attempt to close an egregious loophole that has allowed members to profit from stock trades motivated by inside information about pending legislation.

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.

New Special Master In Foxwoods Case

By Leo Strupczewski
Of the Legal Staff

The state Supreme Court has named Philadelphia Common Pleas Court Judge John W. Herron as the new special master in the Foxwoods Casino case.

According to an order from the high court, Herron replaces former Commonwealth Court Judge Joseph F. McCloskey, who retired. McCloskey was serving as a senior judge.

As special master, Herron will have “full authority” to resolve disputes in the case related to permits, approvals, licenses and other city authorizations related to Foxwood’s gaming license.

Herron is also the special master for issues related to the SugarHouse Casino.

The Supreme Court appointed him to that position in March after it ruled Philadelphia had to issue HSP Gaming a foundation permit to begin building the planned SugarHouse Casino.

The justices said that Herron would handle future disputes related to SugarHouse. McCloskey was previously appointed to a similar position for the Foxwoods Casino.

SugarHouse Special Master Issues First Directive

By Gina Passarella
Of the Legal Staff

As the city of Philadelphia and representatives from SugarHouse Casino begin to put their differences aside and work toward construction of the casino in Philadelphia, the special master assigned to hear any disputes between the two parties has issued his first directive.

Judge John W. Herron gave the city nine orders to be accomplished in the coming days and weeks, all in an effort to move along the building of the casino along the Delaware River in Philadelphia.

After the Supreme Court ruled last month that the city needed to give SugarHouse and its parent company, HSP Gaming, the foundation permit required to start building, both sides said they will work together and the city issued the permit.

In his April 6 directive, Herron told the city, among other things, to issue certain other permits, make changes to city maps to reflect approvals of the site and implement in the next two weeks a streamlined development plan.

The casino also doesn’t have to get an air quality study done. Herron said the city would either have to waive the need for the study or show cause why SugarHouse should be required to get one when the city has failed in the last 34 years to create guidelines and procedures for accomplishing the task and has not enforced the requirement upon any other developer.

“The above directive is issued in consideration of the proceedings before the Supreme Court of Pennsylvania, hearings before this master …submissions by the parties and the master’s express finding that the City and City Council have engaged in a pattern of conduct designed to intentionally delay and frustrate the issuance of permits and approvals required for the construction of SugarHouse Casino,” Herron said in his directive.

SugarHouse came out with a scaled down development plan this week that would bring the casino down to one level and allow for better views of the riverfront. Both SugarHouse and Foxwoods, the other casino slated for development in Philadelphia, went before the Pennsylvania Gaming Control Board today to offer updates of their project developments.

City to SugarHouse: If You Want the Permit, Take It

The City of Philadelphia told the state Supreme Court this week that it has been trying to give SugarHouse a permit the casino says the city is withholding, but the casino won’t take it.

In a request Friday by the City of Philadelphia to file a supplemental response to SugarHouse Casino’s petition before the Supreme Court, the city cited examples of how it has tried to give the casino the license to build it seeks without any response from the company.

In an affidavit attached to the request to the state Supreme Court, city Director of Commerce and Deputy Mayor for Economic Development Andrew Altman said he attended a meeting Feb. 6 between officials of HSP Gaming, the parent company of SugarHouse, and Mayor Michael A. Nutter.

Altman said in the affidavit that the mayor told HSP officials that he wanted to work with them and that there was no ongoing dispute regarding the foundation permit at question. The mayor said the underlying prerequisites for the permit were met and it would be issued upon payment of applicable fees, Altman said. According to Altman, Nutter said he informed the Department of Licenses & Inspections to stand by that afternoon and issue the permit.

Altman said HSP investor Neil Bluhm responded that he understood and believed Nutter’s offer, but didn’t address the specific offer to get the license that day.

The affidavit was attached as further support for the city’s argument made in its initial response in January that it had tried to give SugarHouse the permit it sought to begin building the casino along the Delaware River in the city’s Fishtown section.

On Jan.  8, HSP Gaming filed an application for relief seeking enforcement of the Supreme Court’s December 2007 order requiring the city to give HSP Gaming the required permits. The law department filed its response on Jan. 22. After learning of a meeting including HSP officials and Nutter, the city filed a request to submit a supplemental response Feb. 11. It included as an exhibit the proposed response.

"Curiously, though the permit is available for the taking, HSP refuses to accept that offer," the city said in the supplement. "Apparently HSP is far more interested in creating and stoking disputes, and litigating before this court, than in actually procuring the permit that it claims the city is withholding."

The city argues in its response that HSP is not taking the permit because it wants the court to grant its second request made in the company’s application for relief — the appointment of a special master. The city said HSP is using the application as a "springboard" so that a special master could control any future litigation between the two parties.

-- Gina Passarella, Of the Legal staff

City Files for Reargument in SugarHouse Case

The City of Philadelphia asked the Pennsylvania Supreme Court today to re-hear arguments in a recently decided case that ruled the city has power to convey state owned riparian lands beneath the Delaware River.

The petition claims the court ruled in favor of HSP Gaming on an issue that wasn’t included in oral arguments and in which no evidence was presented.

The court, in HSP Gaming v. City of Philadelphia, had ruled a 1907 law transferred the power to issue licenses for use of the land to the city. It ruled former Mayor John F. Street’s administration had the right to issue a license to HSP Gaming for the building of SugarHouse Casino and ruled Mayor Michael Nutter’s administration did not have the power to revoke that license because the casino owner’s relied on it.

In its application for re-argument, the city said that while it disagreed with the court’s finding that the power granted to the city in 1907 remained with the city, it respected the court’s thoughtful, lengthy analysis on that point.

The city instead argued that there was no evidence to prove HSP Gaming had an entitlement to or reliance on the license issued by the Street administration.

The court’s conclusion that HSP Gaming detrimentally relied on the license ignores the facts, the city argued, that there was no hearing or fact finding to provide evidence of its reliance and that a license issued in error is always revocable. The city also argued that a license granted by the state to use lands held in trust by the state for the public is inherently revocable.

“The General Assembly’s mandate to establish casino gaming throughout this commonwealth as expeditiously as possible should not mean that normal rules requiring parties to prove their cases by a preponderance of the evidence subject to cross-examination are simply to be discarded,” the petition argued. “Nor does it mean that century old case law is simply to be ignored; nor does it justify a radical rewriting of property and public lands law.”

In asking for re-argument, the city said the issue of its ability to revoke the license was “expressly excluded from the oral argument.”

The application was filed by City Solicitor Shelley R. Smith, law department attorney Mark R. Zecca and Pepper Hamilton attorneys Amy Ginensky, A. Michael Pratt, Robin P. Sumner and David V. Dzara.

~Gina Passarella, Senior Staff Reporter

SugarHouse Wins Supreme Court Appeal Over Riparian Lands

Just a day after Foxwoods Casino said it would consider moving its site from the Delaware River to another location in the city, SugarHouse Casino won a significant victory in its battled to build along the river.

The Pennsylvania Supreme Court ruled today that the city of Philadelphia had the right to give SugarHouse Casino a license to build on state-owned riparian lands beneath the Delaware River but ruled the subsequent revocation of that license by a new administration was invalid.

The opinion, written by Chief Justice Ronald D. Castille, is a win for HSP Gaming, the parent company of SugarHouse, which has won every case it brought to the Supreme Court.

The city, under the new administration of Mayor Michael Nutter, had changed its position on whether it could issue a license for the use of state-owned lands and argued it shouldn’t have had that right. Alternatively, it argued that even if it had the right, subsequent legislation signed into law in February by Gov. Edward G. Rendell, clarified the issue and made the revocation legit, according to the opinion.

SugarHouse had argued a 1907 law transferred power to control the lands along the Delaware River to the city of Philadelphia and nothing has since changed that ruling.

“In this case, the plain and unambiguous language of Act 321 [of 1907] makes clear that the General Assembly delegated power to the City to issue submerged lands licenses,” Castille wrote. “Moreover, it is equally clear, by application of fundamental precepts of statutory construction, that no intervening act removed that power, nor did the General Assembly’s recent expression during the pendency of this litigation operate to undo the authority the City enjoyed when it acted in November of 2007.”

The court said the Dam Safety Act of 1978, which repealed parts of the 1907 Act 321, did not specifically take away the transference of power to the city. It also found the city doesn’t have unlimited power to revoke licenses that were granted appropriately.

“We recognize that there has been a change in the executive office in Philadelphia; but the view of the current director of commerce for the City does not affect or undermine the legitimate exercise of the authority reposed in the former director of commerce,” Castille said.

He was joined by Justices J. Michael Eakin, Max Baer and Debra Todd. Justices Thomas G. Saylor and Seamus P. McCaffery each wrote their own dissenting opinions. Justice Jane Cutler Greenspan did not participate in the consideration or decision in the case.

Saylor argued in his dissent that the Dam Safety Act repealed the 1907 law that granted licensing power to the state. He also argued the act never intended for the riparian lands to be used for anything other than wharves, piers or similar harbor structures.

McCaffery said in his dissent that only the state could issues licenses to build on riparian lands and that the city’s revocation was appropriate given it never had the right to issue the license in the first place.

For a more detailed analysis of the court’s decision in HSP Gaming v. City of Philadelphia, look to The Legal’s Web site Monday.

~Gina Passarella, Senior Staff Reporter