The Legal Intelligencer Blog

Plaintiffs Respond to State's Request for Act 13 Reargument

By Zack Needles
Of the Legal Staff

About two weeks after the Pennsylvania Public Utility Commission and Department of Environmental Protection asked the state Supreme Court to reconsider its ruling striking down as unconstitutional key provisions of the state’s Oil and Gas Act amendments, the plaintiffs have filed an answer arguing that the agencies presented “no compelling reason for reargument.”

The high court’s ruling, issued Dec. 19, 2013, overturned Section 3304 of 58 Pa. C.S., known as Act 13 of 2012, and affirmed the decision of a deeply split en banc Commonwealth Court panel. The lower court found last July that requiring municipalities to bring their zoning ordinances into compliance with Act 13 means forcing local governments to violate substantive due process by allowing incompatible uses in their districts.

In a plurality opinion, Chief Justice Ronald D. Castille said the state "fails to respond in any meaningful way to the citizens' claims that Act 13 falls far short of providing adequate protection to existing environmental and habitability features of neighborhoods in which they have established homes, schools, businesses that produce or sell food and provide health care, and other ventures, which ensure a quality of human life."

While the state argued in its application for reconsideration that the ruling “runs roughshod” over the principle that the Pennsylvania Supreme Court does not sit as a trier of fact, the plaintiffs said in their answer that the court’s ruling was based on a “purely legal determination on Act 13’s constitutionality.”

“Neither the Commonwealth Court nor this court required factual findings to conclude that statutory language allowing heavy industrial activity next to homes, schools and sensitive natural resources without consideration of local conditions and preventing municipalities from ameliorating adverse impacts violated the people’s inherent rights as guaranteed under the Pennsylvania Constitution,” the plaintiffs argued.

State Asks Justices to Reconsider Act 13 Ruling

By Zack Needles
Of the Legal Staff

Arguing that the ruling “runs roughshod” over the principle that the Pennsylvania Supreme Court does not sit as a trier of fact, the state Public Utility Commission and Department of Environmental Protection have petitioned the justices for reconsideration of their decision to strike down as unconstitutional amendments to the state's Oil and Gas Act requiring municipalities to adopt uniform zoning ordinances that would allow drilling in all zoning districts.

“As this court has emphasized, fact-finding is ‘a task for a trial court,’ and an ‘area of the judicial process’ that this court ‘would never invade,’” the agencies said in their petition, quoting language from the 1969 Supreme Court case Reed v. Universal C.I.T. Credit. “Because the court for the first time has ‘invade[d] that area of the judicial process’ in this case, reconsideration is warranted.”

The high court’s ruling, issued Dec. 19, 2013, overturned Section 3304 of 58 Pa. C.S., known as Act 13 of 2012, and affirmed the decision of a deeply split en banc Commonwealth Court panel. The lower court found last July that requiring municipalities to bring their zoning ordinances into compliance with Act 13 means forcing local governments to violate substantive due process by allowing incompatible uses in their districts.

While four out of six justices in Robinson Township v. Commonwealth found Section 3304 to be unconstitutional, only one of them, Justice Max Baer, based his finding on due process grounds.

The other three justices who agreed to toss out the zoning mandate—Chief Justice Ronald D. Castille and Justices Debra Todd and Seamus P. McCaffery—ruled that it violated the Environmental Rights Amendment to the state constitution.

Justice Correale F. Stevens did not participate in the consideration or decision of the case.

Article I, Section 27 of the state constitution states that the legislature has an obligation to restrain actions of private parties that are likely to harm the environment and degrade public natural resources.

In a plurality opinion, Castille said the state "fails to respond in any meaningful way to the citizens' claims that Act 13 falls far short of providing adequate protection to existing environmental and habitability features of neighborhoods in which they have established homes, schools, businesses that produce or sell food and provide health care, and other ventures, which ensure a quality of human life."

Baer, however, said in a concurring opinion that he believed the plaintiffs' argument that Act 13's zoning requirements violated their substantive due process rights to be "better developed and a narrower avenue to resolve this appeal."

Justice Thomas G. Saylor issued a dissenting opinion, which Justice J. Michael Eakin joined, saying he would uphold the Act 13 amendments in recognition of "the authority of the General Assembly to make basic, rational policy choices—through the democratic process—that balance the various and potentially conflicting purposes of Act 13."

Eakin filed his own dissenting opinion, echoing Saylor's point.

The agencies mainly focused on Castille’s plurality opinion in their petition, arguing Castille’s findings that natural gas drilling in Pennsylvania “’will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse’” constituted “sweeping factual conclusions” improperly made without a factual hearing at the lower court level.

“Because [the] Commonwealth Court neither conducted a factual hearing nor issued factual findings, however, none of these broad factual statements finds support in the proceedings below,” the agencies said in their petition. “This court should follow its own established precedent and remand to Commonwealth Court for development of facts, application of this court’s newly pronounced standards to the facts found by the Commonwealth Court, and a final determination whether Act 13 violates Section 27 based on a full record and formal factual findings.”

 

Fox Rothschild Re-Elects Leadership

By Zack Needles
Of the Legal Staff

Philadelphia-based Fox Rothschild has re-elected its two co-chairs, as well as its firmwide managing partner, to new three-year terms, effective April 1, 2014.

Phillip E. Griffin and Abraham C. Reich will continue as co-chairs of the firm and Mark L. Silow will continue as its managing partner.

Over the past three years, the firm has grown from 475 lawyers and 15 offices in 2010 to its current roster of nearly 600 attorneys in 19 offices.

In its most recent fiscal year, which ended in March, the firm grew its revenue by nearly 8 percent, from about $257 million to $277 million, and opened new offices in Denver, Coral Gables, Fla., and Morristown, N.J.

Silow told The Legal earlier this year that the firm felt it “had a really solid year in a market and economy that still continues to be challenging.”

Looking forward, Silow said the firm would focus its attention on growing its existing presence in the Denver, Miami and New York markets.

Silow said the firm's goal is to increase the bench depth of each one of its offices until they can all be characterized as "full-service."

But Silow said Fox Rothschild also has its eye on several regions of the country where it has yet to put down roots.

“We'd like to be in a major city in Texas, the Pacific Northwest, the upper Midwest and New England," Silow said.

Zack Needles can be contacted at 215-557-2493 or [email protected]. Follow him on Twitter @ZNeedlesTLI.

PBA Reissues Judicial Candidate Ratings

By Zack Needles
Of the Legal Staff

The Pennsylvania Bar Association judicial evaluation commission has reissued its candidate ratings for the upcoming judicial elections on November 5.

The JEC rated the two candidates for retention on the state Supreme Court – Chief Justice Ronald D. Castille and Justice Max Baer – as well as the two candidates for retention on the Superior Court – Judges Susan Peikes Gantman and Jack A. Panella – as “recommended for retention.”

The JEC also gave both candidates vying for the lone vacancy on the Superior Court – Allegheny County Court of Common Pleas Judge John T. McVay Jr. and Harrisburg attorney Victor P. Stabile – a “recommended” rating.

The JEC said in a press release that Castille has seen the high court through a tumultuous period that has included the Luzerne County “kids-for-cash” scandal, the Philadelphia Traffic Court ticket-fixing scandal and the political corruption conviction and resignation of former Justice Joan Orie Melvin.

“He is credited for his efforts in reorganizing the court system in Philadelphia, for strengthening and improving the judicial discipline system, and for encouraging lawyers to render public interest and legal services work by initiating a law school loan repayment assistance program for their benefit,” the JEC said in the release. “He is recognized for his friendly and forthcoming demeanor, excellent judicial temperament, strong work ethic and substantial output of articulate and well-reasoned opinions.”

Baer, meanwhile, “has distinguished himself by his legal and administrative abilities, integrity and judicial temperament,” according to the JEC.

“He is a collegial member of the court and a consensus builder,” the JEC said. “He writes clear, intelligent and well-reasoned opinions that reflect respect of established law, the precedents set forth by prior Supreme Court decisions and the decision-making responsibility imposed upon that court.”

For the Superior Court, Gantman was credited by the JEC for being “scholarly and energetic,” as well as “possessing exemplary knowledge of legal principles and procedures.”

“She demonstrates sound judgment and possesses the requisite judicial temperament,” the JEC said. “Her opinions are clear, concise and thorough.”

The JEC recognized Panella for his “excellent judicial temperament and a reputation for being a thoughtful and respected jurist” and called his opinions “well reasoned, clear and concise.”

As for the candidates seeking to join the bench, the JEC said McVay “is regarded as having outstanding legal ability in his current position.”

“He is recognized for his diligence, excellent temperament and willingness to employ unique solutions in matters that come before him,” the JEC said.

The JEC credited Stabile, the managing partner of Dilworth Paxson’s Harrisburg office, for his “strong writing skills, administrative ability and experience in handling cases in the appellate courts.”

“He is held in high regard by his peers, who have noted his intellect, strong work ethic and integrity,” the JEC said.

Zack Needles can be contacted at 215-557-2493 or [email protected]. Follow him on Twitter @ZNeedlesTLI.

NCAA Eases Sandusky-Related Scholarship Sanctions Against PSU

By Zack Needles
Of the Legal Staff

The National Collegiate Athletic Association has announced it will begin gradually restoring the football scholarships Penn State lost as part of the sanctions related to the Jerry Sandusky sex-abuse scandal, allowing the university to return to the full complement of 25 initial and 85 total scholarships two years earlier than originally planned.

As part of the sanctions the NCAA imposed in July 2012, Penn State was originally required to reduce its annual scholarships to 15 initial and 65 total scholarships for four years, beginning with the 2014 season.

But in a statement released Tuesday, the NCAA said it would be easing back on those sanctions due to the university’s “continued progress toward ensuring athletics integrity.”

“Beginning next academic year (2014-15), five additional initial scholarships will be restored to the university’s football team,” the NCAA said in the statement. “This amount will continue to increase until they reach the full allocation of 25 initial in 2015-16 and 85 total football scholarships in 2016-17.”

The NCAA added that “the existing postseason ban, $60 million fine to help fund child-abuse programs and other sanctions outlined in the consent decree will remain in effect.”

“However, the group may consider additional mitigation of the postseason ban in the future depending upon Penn State’s continued progress,” the NCAA said.

According to the NCAA’s statement, George Mitchell, the independent athletics integrity monitor for Penn State, had recommended that the scholarship sanctions be relieved.

Mitchell said in the statement that doing so “will give more student-athletes an opportunity to attend Penn State on athletics scholarship while also creating an incentive for the university to continue its progress under new leadership” following the retirement of Penn State President Rodney Erickson in June 2014.

Zack Needles can be contacted at 215-557-2493 or [email protected]. Follow him on Twitter @ZNeedlesTLI.

ARAMARK GC Rejoins Duane Morris

By Zack Needles
Of the Legal Staff

After eight years as senior vice president and deputy general counsel of ARAMARK Corp., John C. Ryan has rejoined Duane Morris in Philadelphia, where he had previously been a partner.

Ryan has rejoined the firm as a partner in its trial practice group. He focuses his practice on white-collar criminal defense and internal corporate investigations.

Ryan first joined Duane Morris in 1999 and became a partner in 2004 before leaving for ARAMARK in 2005.

State Hires West Chester Firm Head to Help Defend Marriage Law

By Zack Needles
Of the Legal Staff

The Pennsylvania Office of General Counsel has enlisted former state Supreme Court Justice William H. Lamb, chairman of West Chester, Pa.-based Lamb McErlane, to assist in the defense of the Pennsylvania Marriage Law in federal court.

The law is being challenged in the U.S. District Court for the Middle District of Pennsylvania case Whitewood v. Corbett by same-sex couples whose marriages from other states aren't recognized in Pennsylvania, as well as couples who have been unable to get married in Pennsylvania.

They are alleging the Marriage Law violates the due process and equal protection clauses of the 14th Amendment.

“Legal arguments concerning the constitutionality of any state law are a pressing matter for the commonwealth, along with all concerned parties, and it is important that these cases receive a comprehensive defense,” Pa. General Counsel James D. Schultz said in a press release issued Thursday. “Justice Lamb and his firm bring a unique set of legal experience and skills to this case.”

Zack Needles can be contacted at 215-557-2493 or [email protected]. Follow him on Twitter @ZNeedlesTLI.

Obermayer Hires Zoning and Land Use Partner from Mattioni Ltd.

By Zack Needles
Of the Legal Staff

Philadelphia-based Obermayer Rebmann Maxwell & Hippel has hired zoning and land use attorney Dawn M. Tancredi as a partner in its business and finance department.

Tancredi was previously a shareholder at Philadelphia-based Mattioni Ltd.

“Dawn is a great addition to our rapidly expanding department,” said David A. Nasatir, chair of Obermayer’s business and finance department. “Her experience with zoning and land use matters will strengthen our existing capabilities in this area.”

Jury Selection Scheduled in Lackawanna GAL Tax-Evasion Case

By Zack Needles
Of the Legal Staff

Jury selection in the tax-evasion trial of Danielle Ross, once Lackawanna County’s sole guardian ad litem, has been set for October 7 at 9:30 a.m. in Courtroom 3 of the Max Rosenn U.S. Courthouse in Wilkes-Barre, according to an order issued by U.S. District Judge A. Richard Caputo of the Middle District of Pennsylvania on Tuesday.

A grand jury indicted Ross in February on two counts of tax evasion and two counts of fraud and false statements, alleging she failed to report any of the income she received from private parties while working as a GAL for the 2009 and 2010 tax years, according to court records.

 

Buchanan Ingersoll Adds Blank Rome Labor Lawyer

By Zack Needles
Of the Legal Staff

Pittsburgh-based Buchanan Ingersoll & Rooney has hired former Blank Rome partner Michael J. Hanlon as a shareholder in its labor and employment practice.

Hanlon, who focuses his practice on advising large corporations and government entities in labor and employment matters, will be based in the firm’s Philadelphia office.

Alfred J. D’Angelo Jr., a shareholder at Buchanan Ingersoll and a member of the executive committee of its labor and employment section, said in a statement that Hanlon “expertly handled a number of high-profile cases and his excellent reputation precedes him as he joins our firm.”

“With this addition to our labor and employment section, we are firmly established as one of the most experienced labor groups in all of Philadelphia,” D’Angelo said.

Zack Needles can be contacted at 215-557-2493 or [email protected]. Follow him on Twitter @ZNeedlesTLI.