The Legal Intelligencer Blog

Reporter’s Notebook: Same Evidence, Very Different Theories in Phila. Church Sex-Abuse Case

By Amaris Elliott-Engel
Of the Legal Staff

In the view of prosecutors, the Catholic Archdiocese of Philadelphia treated the therapy of priests who allegedly committed sexual abuse as a means of managing public relations, not as a means of protecting children.

In the view of defense counsel, the Philadelphia District Attorney’s Office wants to “hang the sins of society” onto the shoulders of one high-ranking church official.

Recounting almost 30 instances, prosecutors have been telling Philadelphia Common Pleas Court Judge M. Teresa Sarmina about the allegations of outright sexual abuse and other sexual improprieties made to the Catholic Archdiocese of Philadelphia about priests ministering in the archdiocese. That information is all part of a decision that Sarmina must make about how many details of those alleged instances should be shared with a jury in the second Philadelphia investigation into sex abuse by Catholic clergy.

Today concluded the third day of a hearing on whether any evidence of prior “bad acts,” or evidence of any other alleged wrongs than those with which a former personnel director for priests is charged with, can be admitted at a trial later this winter of the former archdiocesan secretary of clergy. Monsignor William Lynn, charged with endangering the welfare of youth allegedly abused by priests, is slated to be tried along with co-defendant priests charged with actually committing the abuse. Under Pennsylvania law, the probative value of the evidence must outweigh its potential for prejudicing the defendants.

The same evidence was used to support sharply contrasting arguments.

Prosecutor Mariana Sorensen said that it was archdiocesan policy to just reassign priests when allegations of abuse or other improprieties were made – unless a complaint had also been made to law enforcement.

As secretary of clergy supervising 800 priests, including when dealing with complaints of sexual abuse, Lynn, Sorensen argued, had to have been well aware of the likelihood that people diagnosed with disorders of attraction to children and older youth under the age of consent would repeat their behavior.

“It’s not what Lynn did,” Sorensen said. “It’s what he knew was the danger by continuing to follow that policy.”

One of Lynn’s lawyers, Jeffrey M. Lindy of Lindy & Tauber, said that prosecutors want to hang the sins of society on his client. The widespread reality of sexual abuse of children is being exposed more and more, as evidenced by the sexual abuse scandals at Penn State University and Syracuse University, Lindy said. Later, Lindy complained that, with the way that prosecutors were compiling the allegations against Lynn for inaction or inappropriate action, there was no way for Lynn to win. The implication is that he was acting through “malice,” Lindy said.

Sorensen countered that, just as in Penn State and as reports were passed up the church hierarchy, Lynn should have taken action to share those reports with law enforcement.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI.

Reporter's Notebook: The Big Case Hardly Anyone's Talking About

By Zack Needles
Of the Legal Staff

It's been more than a week and a half since an en banc state Superior Court panel issued what has the potential to be a landmark case in the largely undeveloped area of "preconception torts," and I'm more than a little surprised it hasn't received more play in the mainstream press or legal blogosphere.

In fact, it seems like only a handful of people even know about it, even though we covered it for The Legal.

In its June 28 opinion in Matharu v. Muir, the Superior Court ruled that doctors owe a third-party duty of care to their patients' "future, unborn children," a duty Pennsylvania courts had previously only extended to nonpatient third-parties in cases involving communicable diseases.

According to several lawyers I've spoken to, the ruling could conceivably open the door for duty-of-care expansions in other types of medical malpractice cases.

This, those lawyers told me, is quite a big deal.

But since the Matharu opinion came down, I've seen only a smattering of short articles in general circulation newspapers and exactly one legal blog on the case.

It's possible the ruling simply flew under the radar, coming out late on a Tuesday in mid-summer, but to the extent that anyone saw the opinion and didn't think it noteworthy, those people might want to take a second look.

You can read more about why this decision is important in a follow-up story titled, "Preconception Duty a Significant Step, Med Mal Lawyers Say," scheduled to appear in Tuesday's Pennsylvania Law Weekly section of The Legal.

What say you, readers? Did you see the first story and skip over it? Do you not think this issue matters? Did you not see the first story at all? E-mail me your response at [email protected].

Zack Needles is a reporter for The Legal. He can be contacted at [email protected] or 215-557-2493. Follow him on Twitter at ZNeedlesTLI.

Reporter's Notebook: More Billable Rate Info for Philly Firms' PHA Work

By Gina Passarella
Of the Legal Staff

The firms mentioned in the article in today's Legal titled "Attorneys Forced to Defend PHA Billing, Staffing Practices" were just a few of the many that did work for the Philadelphia Housing Authority since 2005.

Below is a list of those other firms and the rates they charged for a variety of legal work. All contracts have a two-year base period and allow for three additional one-year option periods, totaling a maximum of five years. The ranges provided are the rates the firm agreed to for the two-year base period through the third one-year option period.

- Schnader Harrison Segal & Lewis: The firm was awarded two contracts: one for general legal services in April 2007 for a possible total of $7.5 million, and one for regulatory and administrative work in December 2005 for a max of $5 million. Under the 2007 contract, the firm charged the same amount for senior partners, partners and associates over the life of the contract. That range was between $310 and $335. Paralegals made between $125 and $140 an hour over the life of the contract.

Under the 2005 contract, the firm charged between $375 and $435 an hour for partners, between $225 and $275 for associates, and a blended rate of between $295 and $320 an hour. Paralegals billed between $125 and $140.

- Blank Rome: The firm was awarded a regulatory and administrative contract in December 2005 for a possible total of $5 million. It charged between $340 and $400 for partners, $295 and $355 for associates and a blended rate of between $325 and $385. Paralegals billed between $150 and $210 an hour.

- Hangley Aronchick Segal &Pudlin: The firm was awarded four contracts since 2005 for a total possible amount of $18.25 million. For the regulatory and administrative, labor and employment and one of the general legal services contracts, the firm provided a blended hourly rate of $285 to $330 an hour over the life of the contracts. All three contracts were signed in 2005.

The general legal services contract the firm signed in 2007 provided rates between $300 and $345 equally for senior partners, partners and associates. Paralegals made between $145 and $175 an hour.

- Wolf Block: The firm was awarded five contracts for a total possible award over their lifespan of $25.2 million. The general legal services contract signed in 2005 provided partner rates ranging from $270 through $315 and broke that down depending on whether the partner was consulting or attending hearings. Associates charged between $240 and $285. The firm offered a blended rate of between $250 and $295.

The 2005 regulatory contract had partners charging between $240 and $280, associates charging between $175 and $210 and a blended rate of $215 to $245. The 2005 labor and employment contract provided blended rates of between $220 and $260, and a $400,000 title review contract signed in 2005 was based on a blended rate of between $260 and $280 over the life of the contract.

The firm's 2007 general legal services contract had senior partners charging between $320 and$340, partners between $285 and $305, and associates between $235 and $260.

- Cozen O'Connor: The firm was awarded a general legal services contract in 2007 for a maximum of $5 million and also took over the contract of Klett Rooney Lieber & Schorling when some of those partners joined Cozen O'Connor in 2006.

Under the general legal services contract, the firm charged between $275 and $325 for senior partners, between $250 and $300 for partners, between $215 and $275 for associates, and between $75 and $90 for paralegals. The Klett Rooney work for "ongoing legal matters" that was transferred to Cozen O'Connor was done at a rate of between $250 and $285 for senior attorneys, and between $175 and $225 for junior attorneys. Those were the rates negotiated by Klett Rooney.

- Kolber & Freiman: The firm handled labor and employment work under a $550,000 contract in July 2005 for blended rates of between $200 and $230. That was the same range that senior partners made over the life of a $2.5 million general legal services contract the firm signed in May 2007. Partners working under that contract made between $185 and $215 and associates billed between $175 and $205.

- Kelly Monaco & Naples:  The firm was awarded three contracts worth a potential $5.4 million.
For the 2007 general legal services contract, it charged between $225 and $275 for partners, between $200 and $250 for associates, and between $175 and $225 for paralegals.

Under the 2006 regulatory and administrative contract, the firm charged a blended rate of $185 to $215 and provided breakdowns for partners and associates separately. Attorneys on the $400,000 title review contract charged between $200 and $225.

- Greenberg Traurig: The firm was awarded a $2.5 million regulatory and administrative contract in 2005. It charged $250 for partners for the entire contract period, $225 for associates,  a blended rate of $238, and $90 for paralegals.

- Cohen & Grigsby: The firm worked with minority-owned firms Harvey C. Johnson P.C. and the Law Offices of Denise Smyler. In a $2.5 million general legal services contract signed with Denise Smyler, the firm charged between $290 and $320 for senior partners, between $240 and $270 for partners, and between $180 and $210 for associates.

Smyler agreed to charge under that contract the partner and associate rates charged by Cohen & Grigsby. Under her own $2.5 million contract with PHA for general legal services, Smyler charged between $200 and $215 for senior attorneys, $180 to $190 for partners, and $170 to $180 for associates.

Gina Passarella is the senior reporter for The Legal. She can be contacted at [email protected].  Reporter Amaris Elliott-Engel also contributed to this piece.

Reporter's Notebook: Powell a King-Sized Presence on Witness Stand

By Leo Strupczewski
Of the Legal Staff

Robert J. Powell's nearly two hours on the witness stand at Mark Ciavarella’s federal racketeering trial Tuesday was highly eventful.

And since The Legal's story could only covered a small portion of the proceedings, this blog post -- a good place to empty the reporter's notebook -- can fill out the picture. This is the sort of material that could show up in later stories or fuel newsroom discussion. Or, it might never appear at all. So, consider yourself lucky. You're "in the know."

First things first: Bob Powell is big. Tall, wide. More tight end than power forward.

So big, in fact, that U.S. District Court Judge for the Middle District of Pennsylvania Edwin Kosik asked Powell as he made his way to the stand whether he was with the Pittsburgh Steelers. Powell seemed to misinterpret the joke as a question and told Kosik he "didn't have a dog in the fight," an obvious reference to the Super Bowl.

Seems Powell figured Kosik was inquisitive of his fandom when others interpreted the question as Kosik joking that Powell could play in the National Football League.

Keeping with appearances, Powell was an unshakable presence. True, he wasn’t cross-examined Tuesday, but his command on the stand was impressive. It fit his size. He was sure of himself and, unprompted by Assistant U.S. Attorney Gordon Zubrod, offered his own views on the morality of Ciavarella's alleged actions. Powell likewise was a natural storyteller. His recollections of meetings with the judges were delivered with a certain polish, but did not seem rehearsed. Jurors likely won’t have a hard time choosing to believe him.

More than Ciavarella, it was fellow former judge Michael T. Conahan whose name seemed to surface the most during Powell's testimony.

Powell met Conahan, who has since pleaded guilty to charges related to the alleged scheme, when the former judge was still serving as a magisterial district justice. It was only through his friendship with Conahan that Powell met Ciavarella.

Powell also tried to paint Ciavarella as the mastermind of the scheme to build a private juvenile detention facility, telling the court that Ciavarella brought up the idea of Powell backing such a place with Gregory Zappala, since the two had done a lot of bond work together.

Zappala became a co-owner in the facility but has not been charged with any wrongdoing.

Perhaps most ominous about that portion of Powell's testimony was that his conversation with Ciavarella took place while a jury was deliberating in a case Powell had before the judge. During the time the jury was out, Ciavarella asked Powell and his opposing counsel whether there was an objection to him adjudicating some juveniles while they waited for the jury to reach a verdict. No one objected and Ciavarella sent the attorneys outside the courtroom.

The kids walked in, Powell said, and some were in shackles. One reminded him of his son, he said, and when Ciavarella asked him about the proceedings afterward, he told him the county needed a new facility.

Ciavarella told Powell that maybe after the trial was over, they could “get together to figure out [how to] help the county."

"I thought, sure, that'd be a great thing to do," Powell said.

The day's testimony ended when a juror's cell phone rang.

Kosik has previously said testimony would wrap up at 3 p.m. and the phone rang around 2:50. Kosik looked at Zubrod, who was still questioning Powell on direct examination, and told him it was "a sign from God."

Castille: New Judges Will Get Paid by Court

By Amaris Elliott-Engel
Of the Legal Staff

When six jurists were appointed earlier this month despite a moratorium on filling judicial vacancies, Pennsylvania Chief Justice Ronald D. Castille floated the idea of telling the newly confirmed appointees that the judicial branch can't afford to pay their salaries and benefits and those individuals "may have to file a mandamus lawsuit in order to get paid."

However, Castille announced in a news release today that the six new judges must be paid under the state constitution, and the court will have to absorb $600,000 in additional costs despite facing a deficit of $17 million this fiscal year.

The six judges, two new Common Pleas judges in Washington and Bucks counties and four magisterial district judges in Bucks, Columbia, Lancaster and Lehigh counties, are unfunded in the court's current budget, Castille said.

"These deficits are not because the judiciary is an irresponsible steward of tax dollars or fails to publicly account for its spending," Castille said. "Rather, the deficits represent chronic under-funding of years' duration. These deficits are beyond anything the judiciary can 'save its way out of.'"

In May, Gov. Edward G. Rendell, who makes appointments to fill vacant judgeships, agreed with Castille to keep some 20 seats empty in an effort to save judicial funds. The only exception to the moratorium would be if a county court could convince Castille that filling a judicial vacancy was necessary to manage caseloads.

Castille previously called the filling of the vacancies disrespectful of the judiciary branch, and in today's news release he said that the executive branch did not consult with the judicial branch about advancing the nominations.

Gary Tuma, Rendell's press secretary, previously said that there was a misunderstanding and the administration understood that Castille had agreed that the vacancies should be filled.

Castille also called on Rendell to instruct his budget staff to make no changes in the court's proposed budget, which includes requests to cover the deficit, submitted by the judiciary for the 2011-12 fiscal year. That budget information will be advanced by the Rendell administration to the next governor, who is scheduled to be elected Tuesday.

City Controller: Court's Overtime Jumps by 690 Percent

By Amaris Elliott-Engel
Of the Legal Staff

The First Judicial District's overtime jumped from almost $13,000 in the first quarter of the last fiscal year to more than $102,000 this fiscal year, according to a monthly economic report released today by Philadelphia City Controller Alan Butkovitz.

The increase has resulted in a 690 percent change, Butkovitz's office said.

FJD Court Administrator Dave Lawrence said that most of the overtime increase can be attributed to the addition of a new department in the office. The clerk for criminal cases, the Clerk of Quarter Sessions, was merged into the office earlier this year.

Lawrence said $62,730 of the overtime came from the Quarter Sessions staff. Another $18,713 came from the court's warrant unit and the court's pretrial services during a fugitive apprehension drive undertaken along with the Philadelphia Police Department and the U.S. Marshall's Office, Lawrence said.

Prothonotary Joseph Evers, who has also been running Quarter Sessions, "is moving aggressively to reduce overtime wherever he can" so next year's overtime numbers in that department may look better, Lawrence said.

Butkovitz said that the city's overtime is up $1.8 million during the first quarter of this fiscal year over last fiscal year, including a $1 million increase in police overtime and a $500,000 increase in fire department overtime.

K&L Gates Starts Task Force to Deal With Foreclosure Saga

By Gina Passarella
Of the Legal Staff

Much of the discussion surrounding the dust-up over mortgage companies’ foreclosure practices in recent weeks has focused on how consumers have been affected by confusing or fraudulent paperwork and threats of foreclosure.

Now, K&L Gates is looking to help its mortgage and banking clients that are under the intense spotlight as they navigate potential lawsuits, hearings and foreclosure moratoriums.

The firm said Tuesday it has created a U.S. foreclosure task force to assist clients in addressing questions and responding to allegations regarding their foreclosure practices and procedures.

The news comes as some financial institutions are restarting their foreclosures as part of a counterattack over allegations they did anything wrong in the first place, the Wall Street Journal reported today.

K&L Gates’ task force will assist clients in formulating a coordinated defense to a wide range of allegations, from inadequate documentation and wrongful foreclosure to lack of standing to foreclose and failure to comply with affidavit and notarization requirements, among others, the firm said.

“Combined with the firm’s recognized capabilities in the compliance, policy, litigation, and government enforcement areas, K&L Gates’ leadership and experience on mortgage finance and loan servicing matters make us particularly well-suited to assist clients impacted by this most recent attack on foreclosure practices, with our task force providing yet another example of the firm’s unparalleled government solutions abilities,” Laurence E. Platt, a mortgage banking partner in the firm’s Washington, D.C., office and a leader of K&L Gates’ financial services practice area, said in a statement.

K&L Gates recently served as examiner in the New Century and WorldCom bankruptcy proceedings. The task force will draw from attorneys experienced in those types of matters, as well as in counseling residential mortgage loan servicers on compliance with state servicing laws; initiating and conducting internal investigations; defending lenders and loan servicers in federal and state government enforcement actions, class actions, loan-level litigation and commercial disputes; providing electronic discovery services; and serving as policy and government affairs counselors before Congress and government agencies.

Bucks County Judge-to-be Sees Lag in Domestic Cases

By Amaris Elliott-Engel
Of the Legal Staff

As James M. McMaster of Bensalem winds down his practice in the next month before taking the oath of office to become a Bucks County Common Pleas judge sometime next month, he said that the court needs more judicial resources invested on the domestic relations side.

"The court, in my mind, needs more staff on that side because it's hard when you get listed for a hearing and you're one of 40 or 50 cases on that list. It's [difficult] for the judge to handle all those cases," McMaster said. "It's difficult for clients and you're waiting for hours and hours for your turn."

Bucks County is behind its neighboring counties in terms of the judgeships per capita, McMaster said.

McMaster was one of two common pleas judge and four magisterial district judge nominees who had their nominations confirmed by the state Senate last week, despite a moratorium on filling judicial vacancies and Pennsylvania Chief Justice Ronald D. Castille's objection that filling the vacancies in the face of the court's budget woes showed disrespect for the judicial branch.

McMaster said that his qualifications as a judicial nominee was a "sideline" issue to the chief justice's concerns about funding the court.

While Castille floated the idea in an interview with The Legal that the confirmed judicial appointees may not be paid by the court and may have to file a mandamus action to get paid, McMaster said, "I don't know the legalities. ... I expect the courts to live up to their obligations," whether that means the court needs to get supplemental funding from the General Assembly or pursue another solution for the shortfall identified by the court between its general-fund appropriation and its self-identified fiscal needs.

McMaster said he has had a general practice for 33 years. He practices along with Craig A. Smith in Smith & McMaster in Newtown.

McMaster focuses on domestic relations, real estate and business cases, as well as representing some municipalities. McMaster also represented the Delaware River Joint Toll Bridge Commission for eight years. He received his J.D. from Rutgers University School of Law-Camden.

McMaster has been confirmed to sit as a judge until January 2012, so he will have to run for a full 10-year term next year.

State Sen. Robert M. "Tommy" Tomlinson, R-Bucks, said that he supported Gov. Edward G. Rendell’s nomination of McMaster because the lawyer, who comes from Lower Bucks County, practices a great deal in domestic law and real estate cases, areas that would supplement the bench's current strength in criminal cases. Tomlinson also said that the domestic cases have increased substantially, so McMaster's skills can be used on the Bucks County Common Pleas bench.

Another Court Hearing Set Over Phila. Family Courthouse

By Amaris Elliott-Engel
Of the Legal Staff

A hearing has been scheduled next week in front of U.S. Bankruptcy Judge Eric Frank for the judge to consider whether the private developer who mortgaged the air and surface rights to the proposed Philadelphia family courthouse site can get more time to file a bankruptcy reorganization plan.

A trial is set to start in a related case after Thanksgiving weekend unless the parties settle first.

According to Northwest 15th Street Associates' motion, Northwest has 120 days to file a plan of reorganization after petitioning for bankruptcy. But Northwest is asking the judge to postpone the deadline for the reorganization plan until after the court decides whether the courthouse-site real estate should be held by Northwest or the Philadelphia Parking Authority. Northwest mortgaged the real estate from the parking authority.

The Legal previously reported that the First Judicial District, Northwest and the parking authority are in negotiations to work out a new deal for building the courthouse since the first deal began to unravel in the wake of the revelation that Northwest's principal, Donald W. Pulver, had struck a development fee-sharing deal with the court's former tenant representative, Jeffrey B. Rotwitt.

The hearing is scheduled for 11 a.m. on Oct 20.

Family Court Developments: Money and Mediation

By Amaris Elliott-Engel
Of the Legal Staff

As settlement talks continue over the stymied Philadelphia family courthouse project, the campaigns for the two men running to be Pennsylvania's governor both refused to state this week whether they would follow in Gov. Edward G. Rendell's footsteps and release $200 million in capital funds to build the courthouse.

Press representatives for Democratic candidate Dan Onorato and Republican Tom Corbett were contacted multiple times over the past week on the question, but both campaigns kept mum on the issue.

Time is viewed as of the essence by the courthouse planners because of the possibility that Rendell's successor may not also release state funds for a county courthouse. John Estey, Rendell's former chief of staff and one of the First Judicial District's attorneys working on the deal, said in June that the project could be jeopardized if a binding legal agreement is not struck between the state Department of General Services, the court and the Philadelphia Parking Authority before Rendell's term ends in January.

Meanwhile, settlement talks over the structure of the courthouse deal continue between, among other parties, the court, the Philadelphia Parking Authority and the private developer initially scheduled to build the courthouse. Those talks have been going on for the last couple of weeks.

William H. Schorling, a shareholder with Buchanan Ingersoll & Rooney and the FJD's counsel, said the talks are continuing but no deal has been finalized.

Mark Nevins, a spokesman for private developer Donald W. Pulver's Northwest 15th Street Associates, said, "it's fair to say the talks have been positive so far and they are ongoing."

Pulver's Northwest 15th Street Associates mortgaged the air and surface rights to the courthouse site at 15th and Arch streets from the original owner, the parking authority, and Northwest has filed bankruptcy in order to protect its real property rights at the courthouse site. The parking authority argues that Northwest breached the mortgage agreement under which Northwest was to build the parking authority a parking garage below ground and that the breach is not curable.

If a settlement is not struck, the lawsuit between the Philadelphia Parking Authority and Northwest is scheduled to go to trial the week after Thanksgiving over who owns the air and surface rights to the courthouse site. Each side will get two days to present testimony in front of Bankruptcy Judge Eric L. Frank.

In another development related to the family court, state Sen. Vincent J. Hughes, D-Philadelphia, has included a budget item in the state capital budget for public works that would allow the  Family  Court project to be built at another site besides 15th and Arch.

The item would allocate $250 million for the construction and development, as well as the rehabilitation of existing buildings, in order to potentially consolidate the  Family Court and the police administration headquarters into one site.

Hughes said he inserted the proposal into the bill because it is not clear if a courthouse at 15th and Arch streets will materialize.

Hughes said more flexible legislation is needed because the original legislation ties the courthouse construction money to a particular location and "in case 15th and Arch does not come to fruition, and everyone who is involved in the process can see that it's very possible that it might not come to fruition, especially in the time frame before Ed Rendell leaves the office."

Hughes would like to see the Family Court built at the city-owned 4601 Market St., which sits in his district. Hughes also argues that rehabilitating that existing structure would cost one-third of the projected costs of building a new courthouse building in Center City.

The capital budget has passed both the state Senate and the state House of Representatives, but the release of the capital funds is up to the governor's discretion.

The original structure for the Philadelphia family courthouse project unraveled in the wake of the revelation that the court's former tenant representative, Jeffrey B. Rotwitt, also struck a co-development deal with Pulver, who played a key role in the courthouse pre-development work. Pulver and Rotwitt have said that court leaders were aware of Rotwitt's involvement in both sides of the deal, while Pennsylvania Chief Justice Ronald D. Castille said he did not know about the arrangement.