All Columns

Frank D'Amore

Supercharge Your Career With the Power of Belief

By Frank Michael D'amore |

The power of belief and its thesis that you can accomplish virtually anything you put your mind to, is pooh-poohed by some as New Age nonsense. The critics assail the concept as happy talk that is unproven and certainly has no place in professions such as law.

Paralegals: Don't Discount the 'Value' of Securing Medical Bills

By Christine M. Flynn |

Medical bills or itemized ­statements are associated with care rendered to an individual by a physician, hospital or group practice for a specific ­illness or condition. These amounts relate to hospital admissions, office visits, therapy or surgeries.

Capitol Report

Following is a listing of executive and legislative action for July 14 and the week of July 17. Both houses of the General Assembly are in recess, subject to the call of the president of the Senate and speaker of the State House of Representatives. House leaders issued a call to reconvene beginning July 22.

Samuel Stretton

Referral Mills Are Not Allowed

By Samuel C. Stretton |

I am a relatively young lawyer, but I have many contacts and am able to get a number of different types of cases. I, myself, am not interested in trying cases or handling them. What I want to do is advertise and then when the cases come in, I will refer these cases to other competent lawyers and receive referral fees. Can I do that?

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The 'Protz' Redemption: 2 Huge Breaks for Injured Workers

By Samuel H. Pond 
and Susan Nanes |

In everyone's favorite weekend afternoon movie on TNT, "The Shawshank Redemption," Morgan Freeman's character, Red, describes Tim Robbins' character Andy's love of geology: "Geology is the study of pressure and time. That's all it takes really. Pressure and time."

Growth of HDHPs Could Result in Child Support Litigation

By Hugh J. Algeo IV |

There is a growing trend in health insurance that will have an impact on family law, child support and spousal support. To reduce costs and increase preventative care, the health insurance industry is shifting focus toward high-deductible health plans (HDHPs). An increasing number of employers are eliminating traditional health insurance plans as they currently exist entirely in favor of HDHPs.

Philadelphia.

An Update on Pennsylvania's Local Employment Laws

By Ethan M. Dennis |

Over the past few years, Congress has operated at a deadlock, preventing major new federal workplace legislation from being adopted. Although in its infancy, it seems increasingly unlikely that this congressional term will see a wave of new workplace legislation. Despite this congressional deadlock, federal workplace law continues to evolve as the courts and agencies interpret, and sometimes make, policy.

Protest for the legalization of medical marijuana

Is Medical Marijuana Use Becoming a Protected Class Under State Laws?

By Jeffrey Campolongo 
and Emily Paige Wisniewski |

Few topics these days are blazing as brightly as the issue of ­medical ­marijuana. In April 2016, Pennsylvania became the 24th state to legalize the use of marijuana for medicinal purposes. Used to treat an enumerated list of "serious medical conditions" including epilepsy, multiple sclerosis and ­cancer, Pennsylvania lawmakers have emphasized the scientific research supporting the ­improvements made in patients suffering extreme and debilitating symptoms.

U.S. Supreme Court building

Why Supreme Court Must Take Up the Establishment Clause Question

By Julianne Opet |

On June 26, just before breaking for summer recess, the U.S. Supreme Court forged a dramatic exit by ­issuing a per curiam opinion on the hotly debated "Protecting the Nation from Foreign Terrorist Entry Into the United States," ­Executive Order No. 13780, 82 Fed. Reg. 13209, more colloquially known as the travel ban.

Howard J. Bashman

High Court Report Card: How the Third Circuit Fared in 2016-17

By Howard J. Bashman |

The U.S. Supreme Court's recently concluded 2016-2017 term will most likely be remembered as the term in which the court largely avoided the ­limelight as it awaited the arrival of a ninth justice, who joined the court only in time for its final two-week oral argument session. Although the court did decide some high-profile cases, there were far fewer than in recent terms. That could be about to change, however, now that the court has returned to full strength.

Peter F. Vaira

Ill. Discovery Pilot Project May Cause Federal Rule Changes

By Peter F. Vaira |

The bench and the bar continue their historic battle with the ever-growing tsunami of civil discovery. In 2009, the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System published a white paper that recommended that the notice pleading requirement of the federal court system should be abolished; instead, they recommended a return to "fact pleading" as a means to reduce discovery.

Alan Nochumson of Nochumson P.C.

Court Upholds Award for Tenant for Treble Damages Under UTPCPL

By Alan Nochumson |

Renting a residential property is a two-way street. The tenant agrees to pay rent and, in most cases, the landlord promises to maintain the property in good repair.

Samuel Stretton

New Court-Appointed Counsel System Still Needs Improvements

By Samuel C. Stretton |

I saw Philadelphia has a new fee structure for court-appointed conflict counsel. I noticed there have been increases across the board. Is it a good system now?

Left to right: Andrew Kassner and Joseph Argentina , Drinker Biddle & Reath

Independent Director Tacitly OKs Bankruptcy by Silent Ratification

By Andrew C. Kassner 
and Joseph N. Argentina Jr. |

Over the years, the real estate ­industry relied heavily on securitization vehicles to finance commercial real estate projects. The loans are ­packaged and then sold in pools to investors. Various mechanisms have been developed to ­facilitate collection of the loans without the uncertainty of a borrower bankruptcy filing that could delay and increase the costs of collection. Lenders in these secured transactions often use special purpose entities, or SPEs, to attempt to limit the risk of a borrower bankruptcy filing. While these structures can vary, the concept is to create a separate corporate entity whose only ­purpose and asset is the one real estate project, and the only significant obligation is the mortgage loan. The SPE is isolated from the financial affairs of the corporate parent or affiliates. The lender requires the borrower to appoint an independent director to the board from a mutually acceptable source, and unanimous board approval for certain key decisions, such as the decision to file for bankruptcy. Consequently, a lender is able to reduce the risk of delay after default and high costs of collection, and the ­borrower benefits from lower interest rates and fees from the lower cost loan.

Christian Petrucci

Analyzing the Long-Awaitied 'Protz' Decision

By Christian Petrucci |

English philosopher, John Locke, wrote in his Second Treatise of Government in 1689 that ­legislative authority consists of the power "to make laws, and not to make legislators." Considering the Pennsylvania Supreme Court felt compelled to include this quote at the beginning of its review of Protz v. Workers' Compensation Appeal Board (Derry Area School District), 124 A.3d 406 (Pa. Commw. 2015), it stands to reason that the court wanted to leave no doubt that the Pennsylvania General Assembly had, in fact, attempted to make legislators out of the members of the American Medical Association when the General Assembly authored Section 306(a.2) of the Workers' Compensation Act. As is well known by now, Act 57 of 1996 amended the Workers' Compensation Act in an attempt to join the wave of jurisdictions that were appealing to The American Medial Association Guides to the Evaluation of Permanent Impairments (The AMA Guides) to limit workers' rights. The problem in Pennsylvania has been that the amendments called for reliance on "the most recent edition" of the AMA Guides in performing impairment rating evaluations (IREs). The Supreme Court has finally weighed in on the matter and found that the Pennsylvania legislature attempted to pass off to another body de facto control over matters of policy in violation of Article II Section 1 of the Pennsylvania Constitution.

Company Social Media Policies Must Evolve With the Era

By June F. Swanson |

Companies navigating today's ever-changing digital landscape likely agree with the latter characterization of that saying, because when it comes to defining rules for social media use by employees, corporations certainly have their hands full.

Using Computer Savvy to Build Workplace Relationships

By Alexander V. Batoff |

The legal profession has long been maligned as resistant to change, and there's truth to that stereotype—at least when it comes to technology. Whether working in government, public interest or private practice, horror stories abound of ­attorneys shackled to outmoded ­applications like Corel WordPerfect and Clinton administration-era editions of the Microsoft Office Suite.

Marijuana Banking Takes Massive Leap Forward

By Steven M. Schain |

Last month witnessed a marijuana banking explosion. Spanning 29 states and generating $7.2 billion in 2016, the United States' legalized marijuana industry's greatest obstacle—banking—was significantly reduced by the Department of the Treasury's (Treasury) Financial Crimes Enforcement Network's (FinCEN) June 6, 2017, "marijuana banking update," The Fourth Corner Credit Union v. Federal Reserve Bank of Kansas City, No. 16-1016 --- F.3d ---- (10th Circuit, June 27) landmark opinion, and rise of the interbanking systems alternative to the barred use of credit cards in marijuana sales.

ERA Revisited: Solutions for Navigating an Uncertain Legal Landscape

By Margaret Anne Hill, Michael L. Krancer, Frank L. Tamulonis III and Stephen C. Zumbrun |

On June 20, the Pennsylvania Supreme Court issued its opinion in Pennsylvania Environmental Defense Foundation (PEDF) v. Commonwealth, 2017 Pa. LEXIS 1393 (Pa. June 20), in connection with the so-called Environmental Rights Amendment or ERA (Article 1, Section 27 of the Pennsylvania Constitution). Suffice it to say, the opinion has reopened the debate as to the meaning of the ERA, and more importantly, how the ERA is implemented as a practical and legal matter. In brief, the court ruled that amendments to the state's fiscal code (which sought to address budgetary shortfalls by redirecting money from a fund containing rents and royalties from oil and gas leases on commonwealth land to the general fund) violated the ERA. While the facts before the court were narrowly drawn, the court used the opportunity to revisit the decades old "test" applied in evaluating ERA claims, an issue it first addressed in its 2013 plurality opinion in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013). It abruptly rejected the well-established Payne v. Kassab test and roughly 45 years of ERA-related case law, thereby placing the ERA, and industry, back into legal limbo. Despite some legal uncertainty, this opinion should not be interpreted as a major stumbling block to key energy and infrastructure projects.

Oil and Gas Royalty Class Action Litigation Continues in Pa.

By Stefanie Burt |

Royalty class action litigation continues to move forward in federal courts in Pennsylvania. Currently pending cases have challenged different kinds of royalty clauses, different kinds of marketing relationships, and different aspects of the royalty calculation on a variety of legal theories, including breach of express contract, breach of implied covenants, and good faith and fair dealing claims, among others. Recently, the U.S. District Court for the Middle District of Pennsylvania issued two opinions relating to motions to dismiss filed by a lessee and its affiliated-buyer of natural gas in Canfield v. Statoil USA Onshore Properties, Civil Action No. 3:16-0085, (M.D.Pa. March 22, 2017), where lessors filed a putative class action challenging the calculation of royalties, as well as the relationship between the lessee and its affiliated buyer, on a number of different bases. The district court's ruling on the motions to dismiss and its subsequent ruling on the lessor's motion for reconsideration made very clear that the specific language in the oil and gas lease is a dispositive factor in resolving these disputes.

Navigating Changes to Pennsylvania's Mechanics' Lien Law

By Joshua Lorenz |

Actions taken by state legislators more than two years ago are now beginning to impact major private construction projects across Pennsylvania.

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Should the Support Guidelines Revert to Reasonable Needs?

By Lynne Z. Gold-Bikin |

A bill was entered into the Pennsylvania legislature in 2017, House Bill 1215, which would introduce into the support and alimony pendente lite (APL) guidelines the concept of reasonable needs and exceptions. The current guidelines, promulgated by the state, require that the guidelines "place primary emphasis on the net incomes and earning capacities of the parties."

Disney World: Holiday or Hell

By Sandra Mazer Moss |

Years ago, I took my kids to Walt Disney World. It was a memorable trip with lots of anecdotes and family stories to share over the years. But kids grow up and have kids of their own. And, with all the demands made upon 21st century professionals, sometimes family vacations take a back seat.

Cryogenics and Divorce: When Science Outpaces the Law

By Adam H. Tanker |

According to the Centers for Disease Control and Prevention, in 2012 alone, there were 65,000 births in the United States resulting from assisted reproduction technology, (Centers for Disease Control and Prevention, American Society for Reproductive Medicine, Society for Assisted Reproductive Technology. 2012 Assisted Reproductive Technology National Summary Report. Atlanta: U.S. Department of Health and Human Services; 2014). Although in vitro fertilization, the external fertilization of the egg and subsequent implantation of the fertilized egg into the mother's uterus, has been utilized for a number of years, the development of cryogenic techniques has added a new dimension. Instead of immediate implantation of the fertilized egg, it is allowed to grow to an embryo of a certain size and is then frozen. The frozen fertilized embryo (FFE) can be maintained in cryogenic storage for a long period of time until it is thawed and implanted into a uterus.

Sid Steinberg

Inconsistent Performance Standards Dooms Defense Case

By Sid Steinberg |

Over the years, a consistent theme of this column has been that employers need to hold all employees, regardless of protected characteristic, to the same standard in order to avoid even the appearance of discrimination. These are generally "employment words to live by." Realistically, however, managers often hold more senior employees to a higher standard than they do relative newcomers. While a number of courts recognize this ­reality, in the recent case of Larison v. FedEx Corporate Services, No. 16-5921 (E.D. Pa. June 9, 2017), the manager's shifting explanation of her performance standards created a "genuine issue of fact," which defeated summary judgment.

The First Year of the Defend Trade Secrets Act

By Benjamin H. Mccoy |

On May 11, 2016, the Defend Trade Secrets Act, 18 U.S.C. Section 1836, et. seq., was signed into law. At the time, the DTSA was hailed for ­providing federal protection against the growing problem of corporate espionage. For the most part, the first year of the DTSA unfolded as expected. Federal trade secret filings increased and many litigants attempted to utilize the unique remedies offered by the DTSA. However, the relative infancy of the DTSA leaves many issues open to interpretation. Below, we briefly review some of the major developments during the first year of the DTSA.

Autism in Family Courts—What the Bench and Bar Need to Know

By Kelly C. Wall and Karen Markle |

Family court judges deal with a variety of complex issues on a daily basis. Some of the issues are amusing; who gets custody of the dog, who gets the plaid chair, or who gets to keep the thimble collection. But when children are involved, the case becomes more complicated, especially when issues like mental health, mental or physical disability and developmental disability arise. In fact, the latest concern in family courts is a result of the sharp increase in the number of children who are diagnosed with Autism Spectrum Disorder (ASD), which has revealed that our courts are not prepared to handle cases with ASD individuals and families.

An Amicable Divorce? It's Possible: Just Follow These Principles

By Lauren Koster Beaver |

If you ask someone to list three words that come to mind when they think of divorce, "amicable" most certainly would not be one of them. Although divorce is, by its nature, emotionally draining and financially complex, it does not also have to be highly contentious and litigious. As an attorney practicing exclusively family law, whenever I mention the concept of an amicable divorce to clients, nine times out of 10, people look incredibly surprised. "But wait, I thought the only way to get (fill in the blank) was to go to court?" Most are also surprised to hear that very few family law cases actually proceed to trial and that most are ultimately resolved by a settlement reached between the parties.

Parties in Dependency: Proper Notice and Participation Is Essential

By James W. Cushing |

The stakes in a dependency matter are extremely high. Indeed, one's parental rights over his child could be forever terminated in such a matter, so it is imperative that the parties involved receive sufficient notification of the hearings which take place and are given a full opportunity to participate. The trial court, in In the Interest of K.S., a Minor, Appeal of A.L.W., 2017 WL 1162449, has made it clear that proper notice and participation of the parties is absolutely essential in a dependency case.

Four Basic Divorce Process Options to Consider

By Dawn S. Sunday |

The initial choice a prospective client must make after deciding to pursue a divorce is the process that she or he will use to address decision-making related to child custody, property distribution and cashflow (child support, spousal support, temporary alimony and alimony). The four basic family law process options currently available are kitchen table or pro se negotiations, mediation, litigation/arbitration, and collaborative law. There are many variations of each of the foregoing options, but for simplicity each will be considered in its basic form.

The Uncertainty and Reality of Transgender Marriage in Pennsylvania

By Dorothy Wolbert |

It is undeniable that the transgender community has been gaining greater public attention in the last several years. While activists have been working for decades to increase acceptance, the high-profile case and transition of Chelsey Manning and celebrities like Chaz Bono, Laverne Cox and Caitlyn Jenner, combined with the integration of transgender story lines in shows like "Transparent," have helped the community gain traction within the mainstream—increasing awareness about the difficulties faced by individuals with gender dysphoria.

Superior Court Provides Guidance for UTPCPL Treble Damage Awards

By James M. Lammendola |

A recent Pennsylvania Superior Court decision affirmed a treble damages award to a residential tenant in the consolidated cases Nexus Real Estate v. Erickson and Erickson v. Cohen, No. 972 WDA 2016. The Allegheny County Court of Common Pleas awarded John Erickson $23,150 (plus escrowed funds) pursuant to the Unfair Trade Practices and Consumer Protection Law (UTPCPL).

Vasilios J. Kalogredis

Common Questions for Newly Licensed Physicians in Pennsylvania

By Vasilios J. Kalogredis |

This article addresses ­common questions that new physicians, ­current physicians, and other medical professions (and those advising them) may have regarding medical licenses in the state of Pennsylvania.

Contractual Risk Management Tips for Construction Companies

By Joshua R. Lorenz |

When contractors hear the phrase "risk management" they often think of on-the-job duties first. Do I have the correct safety protocols in place? Am I managing our project timelines accurately? Are my workers being compensated fairly? While these questions are all important to ask, what many companies fail to realize is that most risk-management planning begins before the first shovel of dirt is overturned.

State Judges: Political Selection or Election Selection?

By Cliff Rieders |

There has been a strong movement for many years by politicians of all stripes and organizations affiliated with politicians to eliminate election of appellate judges. Keep elections of your local judges, the politicos say, but let someone else select judges for Pennsylvania Superior and Supreme courts.

Angela Giampolo of Giampolo Law Group in Philadelphia

The 'Icing' on the Discrimination Cake: Justices Take Up Case

By Angela D. Giampolo |

On the final day of the term, June 26, the U.S. Supreme Court agreed to hear the case of the Colorado baker, Jack Phillips, who refuses to make cakes for same-sex weddings on the basis of his ­religious beliefs. Unfortunately, we are going to have to wait to see if "religious freedom" includes the freedom to discriminate as the case will likely not be argued until late in the next session, which begins in October.

Jae Y. Kim

Reflections From the First PDLG Alumni Conference

By Jae Y. Kim |

Does a tree thrive in an open field or in a dense forest? This question was posed at the first Philadelphia Diversity Law Group (PDLG) alumni ­conference to a room full of lawyers, ­ranging from first-year associates to senior partners, during a presentation by Werten Bellamy, a career strategy expert. Bellamy's question elicited a few chuckles from the audience—what do trees have to do with being a successful lawyer?

gavel

High Court Eliminates Joint and Several Liability Among Co-Conspirators

By Jed M. Silversmith and Jeremy Kolman |

On June 5, the U.S. Supreme Court handed down a decision that will impact sentencing in virtually every criminal case that involves multiple defendants (or multiple conspirators) and the imposition of an order of forfeiture.

Samuel Stretton

Roving Jurors Provided Oversight in the Courtroom

By Samuel C. Stretton |

I am a young lawyer who is starting to try a number of cases in Philadelphia and I hear stories of roving jurors. What were they?

Michael Dillon

Rule for Common-Control Determinations in Air Permitting Rejected

By Michael Dillon |

On June 2, the Commonwealth Court weighed in on the long-simmering national debate surrounding questions of when two or more facilities must be regulated as a single source under the federal Clean Air Act (CAA) and state air pollution control statutes. The U.S. Environmental Protection Agency and state agencies have sought to aggregate facilities where certain factors support a finding that the facilities are operationally related, and especially where the level of emissions from the combined source would trigger heightened regulatory or permitting requirements. National Fuel Gas Midstream v. Pennsylvania Department of Environmental Protection, No. 116 CD 2016 (June 2, 2017), provides some clarity about the meaning of the term "common ­control," one of the three factors for determining if facilities should be aggregated for air permitting purposes. The decision finds that regulated facilities should not be ­combined as a single source merely because they are each owned by a separate subsidiary of a shared corporate parent.

Catelyn McDonough

One-Way Ticket to Dallas: Lessons From My First Trial

By Catelyn McDonough |

Over 9,000 lawsuits have now been filed in state and federal courts around the country against Johnson & Johnson and DePuy, alleging its DePuy Pinnacle metal-on-metal hip implant device was manufactured defectively, the risks of which the company failed to warn ­doctors and patients. Allegations include more ­frequent and rapid device failures due to the metal-on-metal design flaw, leading to severe injuries like tissue death, bone erosion and high levels of metal in the blood. Like any mass tort of this magnitude, the cases were consolidated into a multidistrict litigation (MDL) in 2011 in the Northern District of Texas, presided over by the U.S. District Judge Ed Kinkeade in Dallas. Part of the MDL process includes a bellwether ­selection, during which the parties select cases they want a jury to hear—bellwethers—with the goal of ­moving the overall litigation toward a global resolution (bellwether literally means the sheep with the bell on its neck, leading the entire flock).

Marketing 101—Or Why You Need a Marketing Mindset

By Meg Charendoff |

If I had a quarter for every time I've heard one of the following statements about marketing, I wouldn't exactly be rich, but I'd have a lot of quarters.

Patents, Trade Secrets and Inevitable Disclosure Doctrine

By Anthony S. Volpe and Bradley M. Brown |

Throughout time industries have ­developed techniques and processes that are believed to be essential elements that contributed to the company's success. For almost as long, companies have sought and devised ways to protect those techniques and processes that constituted the company's intellectual property. Many companies turned to federal patent protection, others chose to treat the information as trade secrets and others chose to use contractual obligations to protect their intellectual property.

Malcolm J. Ingram.

Turning Common Career Mistakes and Setbacks Into Opportunities

By Malcolm J. Ingram |

No matter how much success you ­experience in your legal career, inevitably at some point you will encounter a setback and make mistakes. Whether the setback is not passing the bar exam in your law firm's jurisdiction, missing a key argument in a brief, or blowing a litigation deadline, these mistakes don't have to define your legal career. A setback is the perfect opportunity to take a moment and reflect on how the setback occurred and what you can do to catapult your career forward. As I said in my previous article "Taking Control of Your Legal Career as a First-Year Associate," published April 5 in The Legal, failure precedes success and becoming a great lawyer is a marathon, not a sprint. By using the four steps listed below, young attorneys can turn common mistakes and setbacks into opportunities for growth and branding.

Make Smart Decisions by Fighting Confirmation Bias

By Dena Lefkowitz |

If you are reading this, you are probably an investigator. It may not be your job title, but if you are a lawyer, auditor, doctor, HR business partner, manager, executive, etc., a big part of your job is investigatory, requiring you to arrive at well-reasoned, fact-based, modern decisions, guidance or recommendations. You regularly make searching, systematic inquiries based on examination of relevant facts, data and information. How do you determine what is relevant when you investigate? It's likely that you unconsciously select or rely too heavily on information you already agree with and pay little or no attention to data that conflicts with your beliefs.

Building and Managing an International In-House Legal Team

By E. Leigh Dance |

Companies constantly add products and services, fueled by opportunity, technology and competition. They also continually grow into new geographic markets and contract in others. Often local legal talent is needed, because even though many businesses are now global, much of the law is still local.

Shkedy/Smolen

New Extended Deadlines for Portability Election Filing

By Rebecca Rosenberger Smolen and Amy Neifeld Shkedy |

On June 9, the IRS issued Rev. Proc. 2017-34, 2017-26 IRB, which ­provides a more liberal timeframe for certain estates to make the federal estate tax portability election.

Coal Mining Bill Could Put Pa. Streams in Jeopardy

By Mark L. Greenfogel |

Following a vote of 32-17 in the Senate earlier this month, the Pennsylvania House of Representatives Committee on Environmental Resources & Energy is considering an amendment to the Bituminous Mine Subsidence and Land Conservation Act of April 27, 1966, P.L. 31, as amended, 52 P.S. Sections 1406.1-1406.21 (BMSLCA or Mine Subsidence Act).