The Legal Intelligencer Blog

As Senior Judge, Sloviter to Maintain Busy Workload

By Saranac Hale Spencer
Of the Legal Staff

Judge Dolores K. Sloviter, the first woman to serve on the U.S. Court of Appeals for the Third Circuit, told President Obama in her official letter of resignation that she plans to maintain 80 percent of her current workload when she accepts status as a senior judge of the court later this month.

The letter, which was released by Sloviter’s chambers Thursday, was dated June 4. Her resignation is set to become effective June 21, exactly 34 years after she took her seat on the Third Circuit as an appointee of President Jimmy Carter. Sloviter served as chief judge of the Third Circuit for most of the 1990s.

“During my tenure, I have had the opportunity to participate in the consideration of some of the most challenging and interesting issues to have come before the federal courts,” she wrote in her letter to Obama.

The longtime judge told Obama that it had been a privilege to serve on the court for more than three decades. “I cannot imagine any job in which I would have had an equivalent opportunity to serve this country,” Sloviter wrote.

Saranac Hale Spencer can be contacted at 215-557-2449 or [email protected]. Follow her on Twitter @SSpencerTLI.

Third Circuit Judge Favors Recording Police Confessions

By Amaris Elliott-Engel
Of the Legal Staff

Judge Franklin S. Van Antwerpen of the U.S Court of Appeals for the Third Circuit has said police confessions should be videotaped and reviewed by trial court judges pretrial.

The Third Circuit has not yet dealt with a lot of issues involving false confessions, including because 90 percent of all federal defendants plead guilty, Van Antwerpen told a group of attorneys and law students who gathered today for the Temple Law Review's symposium on false confessions.

But the appellate judge said he has been caused concern after learning that four of the 11 Pennsylvania defendants who have been exonerated because of DNA evidence have also given false confessions.

“That's too high,” Van Antwerpen said.

“The best way to implement such a rule would be through court rule-making and to do it prospectively,” Van Anterwerpen said.

Peter Neufeld, of the Innocence Project at Benjamin N. Cardozo School of Law, said that when he started out as a public defender, “I couldn't imagine someone who was actually innocent” confessing to a crime he or she didn't convict. But of 300 cases of people who have been wrongfully convicted in the United States, 75 falsely confessed and lost in the courts when they tried to suppress their confessions, Neufeld said.

That's why there should be pretrial hearings in which confessions are reviewed by judges for reliability, Neufeld said.

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

Third Circuit Grants Stay of Execution

By Saranac Hale Spencer
Special to the Legal

Hubert Michael, who was convicted of raping and murdering a 16-year-old girl 20 years ago, has gotten a stay of execution from the U.S. Court of Appeals for the Third Circuit.

“Because the District Court has not granted a stay of execution, we hereby grant the appellant’s motion for stay of execution filed with this court,” Third Circuit Judge Thomas Ambro wrote on behalf of a three-judge panel in a two-page order issued on the scheduled date of Michael’s execution. Judge Thomas Hardiman and Senior Judge Richard Nygaard were also on the panel.

The matter came to the Third Circuit through a certificate of appealability issued by the U.S. District Court for the Middle District of Pennsylvania, which had denied Michael’s bid to re-open his case.

“Once a certificate of appealability is granted, a court, ‘where necessary to prevent the case from becoming moot by the petitioner’s execution, should grant a stay of execution pending disposition of an appeal,’” Ambro said, quoting from the U.S. Supreme Court’s 1983 opinion in Barefoot v. Estelle.

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.)

The top story in today’s Legal is a look at whether Pennsylvania is being forced to decide the Restatement issue it is facing. As reporter Amaris Elliott-Engel writes, after the Third Circuit said for the third time that the Restatement (Third) of Torts governs products liability cases in the state, some attorneys said the federal appeals court seems to be trying to force the issue.

Below the fold on Page 1, reporter Gina Passarella writes that employees of West Penn Allegheny Health System have been barred by collateral estoppel from filing a class action in state court when a Pittsburgh federal judge already ruled against certifying a collective action in a similar suit by the same plaintiffs.

In more Regional News on Page 3, reporter Saranac Hale Spencer writes that key claims against Prevacid, a heartburn drug, have survived in a federal lawsuit.

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 Health Care Law column, Vasilios J. Kalogredis and Karilynn Bayus write that hospitals are beginning to feel the effects of quality initiatives.

In a Supreme Court column on Page 7, Stephen A. Miller and Thomas M. O’Rourke write a look into the effect of the ¬Wal-Mart Stores v. Dukes case and expansion of “rigorous” review.

Today’s lead story in PLW is a look at campaign fundraising in the attorney general race. As reporter Ben Present writes, Kathleen Kane has bolstered her coffers, narrowly outpacing David Freed.

Below the fold on Page 1, Ben Present writes that a Commonwealth Court en banc panel allowed General Motors to unilaterally suspend an injured worker’s benefits without the required paperwork because the man had taken a voluntary retirement package.

On Page 3, reporter Zack Needles writes that the Superior Court has blocked the discovery of past surgical notes in a medical malpractice suit.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he writes about violating attorney-client privilege when a client’s financial situation changes; Caren E. Morrissey’s Family Law column in which she writes that mental health records should be discoverable in custody matters; and Peter J. Bietz’s Trusts and Estates column, in which he writes that attorneys may need to change their practices after the EGTRRA’s sunset.

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 the continued Restatement muddle in the U.S. Court of Appeals for the Third Circuit. As reporter Amaris Elliott-Engel writes, defense lawyers in an airplane crash case said they were left wondering which source of law should apply after the Third Circuit declined to consider a district judge’s opinion that the Restatement (Second) of Torts, not the Restatement (Third), applies to products liability law in Pennsylvania.

Below the fold on Page 1, reporter Gina Passarella writes that Buchanan Ingersoll & Rooney is set to open an office in Charlotte, N.C.

In more Regional News on Page 3, reporter Saranac Hale Spencer writes that an Eastern District judge has ruled that a ship doesn’t qualify as a product for purposes of products liability and that makers of the components of those ships don’t have a duty to warn “sophisticated” users about hazardous products, like asbestos.

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 an Insight on Diversity column on Page 5, Cassandra Lee Matos writes about how a global perspective can make you a better lawyer.

In this week’s Law Technology News page, Monica Bay writes that a survey showed that law department spending is up.

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 this morning is attorneys sparring over motions at a hearing in Harrisburg yesterday for two former Penn State administrators. As reporter Ben Present writes, former athletic director Tim Curley’s attorney argued prosecutors had lodged an “unorthodox” perjury case against Curley.

Above the fold on Page 1, reporter Saranac Hale Spencer writes that the Third Circuit will hear arguments again regarding whether the Easton Area School District could ban breast-cancer awareness bracelets stamped with the phrase “I [heart] boobies.” This time the case will be heard en banc.

Below the fold on Page 1, reporter Gina Passarella writes that Elliott Greenleaf has settled its suit against Stevens & Lee and its ex-partner who left to join that firm. The parties cited a confidentiality clause in refusing to divulge the details of the settlement.

In more Regional News on Page 3, Gina Passarella writes that Stevens & Lee has started a government consulting group with state Representative John C. Bear, R-Lancaster.

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 Commentary on Page 5, Andrea M. Kirshenbaum writes about life lessons learned from watching her son’s Little League baseball team.

In a Bankruptcy Update on Page 7, Rudolph J. Di Massa Jr. writes about a case lenders should take note of, Commerce Bank/Harrisburg N.A. v. Kessler.

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 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 Kentucky firm Stoll Keenon Ogden opening a Western Pennsylvania office with a focus on oil and gas. As reporter Zack Needles writes, the office will be in the Southpointe business park in Washington County, Pa., led by member David H. Thomason, who has more than 45 years of experience in mineral law.

Also above the fold on Page 1, reporter Gina Passarella writes that a Philadelphia judge has found the Lundy Law firm breached its contract with a referring attorney over a referral fee, but the judge’s order has left unresolved how the fee will be awarded given several firms won the damages and only one signed the fee agreement.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that the Third Circuit has tossed Tinicum Township’s claims against the expansion of Philadelphia’s airport.

In more Regional News on Page 3, reporter Amaris Elliott-Engel writes that Paul Anapol, one of the founders of plaintiffs law firm Anapol Schwartz, has died.

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 an Employment Law column on Page 5, Sid Steinberg writes that the use of dated bases for termination has been upheld in an age bias case.

This week’s GC Mid-Atlantic column is on Page 7, as James A. Matthews III writes the final part in a series on the attorney-client privilege within the client organization.

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.

Constitutional Claims of PHA Official Tossed by Third Circuit

By Saranac Hale Spencer
Of the Legal Staff

Within 10 days of hearing arguments, a three-judge panel for the U.S. Court of Appeals for the Third Circuit has thrown out claims made by a former executive assistant at the Philadelphia Housing Authority that he had been retaliated against for constitutionally protected speech.

The panel affirmed the district court’s opinion, dismissing Vincent Morris’ amended complaint. Judge Michael Chagares wrote the opinion, issued as “not precedential,” on behalf of a panel that included Judges Dolores Sloviter and Kent Jordan.

Morris’ allegations stemmed from the allegedly illegal lobbying activities he said he had been compelled to perform by his supervisor, Carl Greene. Most of his allegations fell outside of the two-year statute of limitations, but he alleged that he was “constructively” terminated in 2010 in retaliation for his objection to the tasks.

Morris argued that his speech in that context should be constitutionally protected, but the court ruled it is not because he reported his complaints to an internal chain of command at the PHA.

“In light of Garcetti and our subsequent cases, we conclude that Morris’ speech was not entitled to First Amendment protection,” Chagares said, referring to the U.S. Supreme Court's 2006 opinion in Garcetti v. Ceballos. “We have consistently held that complaints up the chain of command about issues related to an employee’s workplace duties – for example, possible safety issues or misconduct by other employees – are within an employee’s official duties.”

In Garcetti, "the Supreme Court narrowed the scope of protected activity by holding that 'when public employees speak pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,'" U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania explained in his opinion in Morris v. PHA dismissing the case.

In his eight-page opinion, Chagares quoted Garcetti, concluding, “Because Morris complained to his superiors within PHA about matters arising in the scope of his employment duties, his speech did not have a ‘relevant analogue to speech by citizens who are not government employees.’”

Morris’ lawyer, Michael Pileggi, thought after oral arguments that the Third Circuit might have been planning to carve out an exception to protect public employees’ speech when it regards illegal activity. He was disappointed that it didn’t.

Although he has to consult his client, Pileggi said, “I still think it’s an appealable issue.”

Michael Bowman, of Bowman Kavulich in Philadelphia, represented the PHA and could not be reached for comment.

Third Circuit OKs Dredging of the Delaware River

By Gina Passarella
Of the Legal Staff

The U.S. Court of Appeals for the Third Circuit has greenlighted the dredging of the Delaware River.

A three-judge panel of the court upheld the rulings of district courts in New Jersey and Delaware that each found no environmental statutes would be breached by deepening the river five feet in an effort to make the river’s ports more commercially viable. It was a project backed by Pennsylvania.

The ruling is a victory for the U.S. Army Corps of Engineers, which was first appropriated funds for the project in 1992 and looked to start it in earnest in 2009 before several legal challenges arose from New Jersey, Delaware and various environmental groups. Partial wins along the way allowed the Corps to dredge portions of the river.

“For over 20 years, the Corps has devoted substantial efforts to evaluating the proposed five-foot deepening project for the Delaware River,” Judge Anthony J. Scirica said for the majority. “It has published three comprehensive NEPA [National Environmental Policy Act] reports, received multiple rounds of public comments, and had immeasurable communications with the relevant state and federal agencies. Its decision in 2009 to proceed with the project was consistent with NEPA, the [Clean Water Act], and the [Coastal Zone Management Act.]”

Judges Julio M. Fuentes and Thomas M. Hardiman joined Scirica’s ruling, outlined in a 67-page opinion.

Gina Passarella is the senior reporter for The Legal. She can be contacted by e-mail at [email protected] or phone at 215-557-2494. Follow her on Twitter at @GPassarellaTLI.

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 the Defender Association of Philadelphia slated to withdraw from multiple Municipal Court courtrooms beginning today because the association says it has not received enough funding from the city of Philadelphia. As reporter Amaris Elliott-Engel writes, private attorneys will represent indigent defendants in those courtrooms instead, according to criminal justice leaders, but scheduling conflicts with the private attorneys will likely lead to more cases being rescheduled or delayed.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that the Third Circuit has established a four-part test to determine whether a company is a joint employer under the Fair Labor Standards Act. The case of first impression arose in a class action suit filed by assistant managers at Enterprise Rent-A-Car branches across the country alleging Enterprise failed to pay overtime wages.

In more Regional News on Page 3, reporter Zack Needles writes that intellectual property boutique Caesar, Rivise, Bernstein, Cohen & Pokotilow has changed its managing partner. David M. Tener will take over the post that Manny D. Pokotilow held for about two decades.

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 the Public Interest page on Page 5, Angus Love writes that a consensus is building for sentencing reform.

In the Law Technology News page on Page 7, John Barkett writes that the ABA is set to tackle technology issues at its upcoming meeting.

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.