The Lawyers Journal | Vol. 9 | 2007

VOL. 9 NO. 21 The Journal of the Allegheny County Bar Association OCTOBER 12, 2007

Cappy to resign at the end of 2007

By Lisa M. Wolfe resolve the most complicated disputes.” said Cappy. “Although I will After a mostly quiet tenure on the leave judicial service at the ennsylvania Supreme Court Supreme Court, Cappy was placed into end of this year, I will Chief Justice Ralph J. Cappy the spotlight during the controversy always remain committed Pannounced on September 11 that over the 2005 pay raise. Cappy, howev- to the principles of judicial he would resign at the end of the year er said that the pay raise issue did not independence and judicial after 18 years on the state’s highest cause him to leave the court prior to the excellence. As importantly, court. Cappy disclosed his early retire- expiration of his term in 2009. I will always treasure the ment in a public statement and in a let- “Let me be clear: The fact is that the honor of having worked ter to Gov. Ed Rendell, who must name controversy played no part in this deci- with so many fine col- a successor to fill out the last two years sion,” he said. leagues who devote them- of his term. The governor’s choice will Cappy did not back down on his selves to these principles.” face confirmation by the state Senate in assertion that fair and adequate pay for Gormley said that Cappy early 2008. state judges is needed. While “we can- has been a dominant force of Cappy has been a member of the not hope to have judicial salaries that the Pennsylvania Supreme judiciary for nearly 30 years. He was compete with the private sector,” he Court since he ascended to an Allegheny County Court of Common said, “we must have salaries high the bench. Pleas judge prior to taking his seat on enough to attract and retain outstand- “He has been a leader in the Pennsylvania Supreme Court. ing people as judges.” establishing a body of law “After years of an extremely busy Cappy is proud of the improvements relating to the Pennsylvania work schedule, I believe it is time to in the Supreme Court during his five Constitution,” said Gormley. go,” he said in his statement. years as chief justice. “In Commonwealth v. Cappy had a hip replaced in July, “We have modernized. We have Edmunds, Justice Cappy set and during his recovery he decided it developed new programs to better out a protocol for judges and was time to move on. serve the people who use the courts. lawyers to follow in analyz- “I had time for reflection. I realized We have worked to address the needs ing state Constitutional that … the time had come for me to of families, women and minorities in cases so that a lasting body pass on the torch,” Cappy said. “My the courts. We have improved court- of law would develop in that health is still good. But I want to spend house security,” he said. area. He succeeded in doing Hon. Ralph J. Cappy more time with my family and to pur- Cappy said he will continue to serve that and his cases are now sue personal interests.” on the University of Pittsburgh’s board widely cited by courts across the coun- the seven-member high court in 2008. ACBA President Ken Gormley believes of trustees and on the University of try as leading examples of state Consti- Along with the justice appointed by Ren- that Cappy will leave a lasting mark on Pittsburgh Medical Center board, but tutional jurisprudence at its best.” dell to fulfill the rest of Cappy’s term, two Western Pennsylvania’s legal community. he intends to cut back on any other Justice Ronald Castille, the justice new justices will be elected in November “Chief Justice Cappy has been a public commitments. with the second longest tenure on the to replace Justice Cynthia Baldwin and dominant force in the Pittsburgh legal “I am proud of Pennsylvania’s Uni- court, will take over the role of chief Justice James Fitzgerald. Baldwin and community for decades,” said Gormley, fied Judicial System and all that we justice beginning in January. Fitzgerald are currently filling the terms a professor of constitutional law at have accomplished within the courts,” There also will be other changes on of former Justices Nigro and Newman. ■ Duquesne University School of Law. “He left a real imprint as the public defender in Allegheny County and then he established a real presence on the Court of Common Pleas. He was known as the judge who could resolve the most impossible cases.” “Chief Justice Cappy had a knack for Christian Legal Aid Society bringing people together, zeroing in on the core issue and finding a way to joins Pro Bono Center Address Service Requested Pittsburgh, PA 15219-1818 400 Koppers Building, 436 Seventh Avenue The Allegheny County Bar Association

By Jason Green an attorney with Eckert Seamans role of pro bono coordinator, I have had Cherin & Mellott. The volunteers coun- requests for legal services that just he Christian Legal Aid Society sel clients, providing advice and refer- were not covered by any of the member (CLA), a legal clinic that helps rals on a variety of non-criminal issues, organizations/projects of the Pro Bono Tlow-income and indigent individ- including estates and trusts, landlord- Center or were not conveniently locat- uals with civil law issues, has joined tenant, protection from abuse and ed to offer assistance,” she said. “I the Allegheny County Bar Foundation’s bankruptcy matters. Christian Legal have referred numerous clients to the Pro Bono Center. Aid members do not regularly accom- clinics in Oakland and North Side.” “The advantage is that we will have pany clients to court, Langton said. Albert said she has also provided better training for volunteers,” said Langton hopes the clinic will be able mentors to attorneys who work at the Livia Langton, the society’s president to acquire private funding to hire a clinics on occasion. and clinic manager. “We’ll have a paralegal, and eventually, an attorney, “It just made sense to make CLA a broader pool to pull from.” to staff the clinic on a full-time basis. Pro Bono Center member so that we The clinic, which opened in January As a member of the Pro Bono Cen- can join forces to help expand legal 2004, is staffed by 20 attorneys and 30 ter, resources will be available to the services to the community,” she said. University of Pittsburgh and Duquesne CLA. The resources include assistance CLA also expands the volunteer University law school students who with recruiting attorneys, providing opportunities that the Pro Bono Center volunteer their time on a monthly or malpractice coverage to the volunteers can offer. quarterly basis. It is open from 6 to 9 and providing the CLA with access to “In the way of volunteering, we have p.m. four evenings per month—at the free legal research through the Pro also discovered that one size does not Church of the Ascension in Oakland on Bono Center’s LexisNexis grant. fit all,” Albert said. “This offers anoth- the first Thursday of the month and at Lorrie Albert, the Allegheny County er volunteer opportunity for ACBA the Allegheny Center Alliance Church Bar Foundation’s director and former lawyers who may be interested in serv- in the North Side on the second, third pro bono coordinator, said the CLA will ing in such a clinic setting.” and fourth Tuesdays of every month. be an asset to the Pro Bono Center Langton said CLA can also be an The clinic is operated by two attor- because it offers a convenient location asset, taking clients that other agen-

Non-Profit Org. neys and three law student staff mem- to city residents. cies, like Neighborhood Legal Services, Pittsburgh, PA Permit #130 U.S. Postage bers each night it is open, said Langton, “For as long as I have been in the Continued on page 10 PAID

visit the acba website at www.acba.org PAGE 2 LAWYERSJ OURNAL OCTOBER 12, 2007

Legal Reports lawyers Satellite sites not always a Journal “single site” under WARN The Lawyers Journal is published fortnightly by the Allegheny County Bar Association 400 Koppers Building By Maria Greco Danaher On Jan. 1, 2003, NLL’s parent com- their work was not assigned at the 436 Seventh Avenue pany merged NLL with another sub- Billings location; or (3) the employees Pittsburgh, PA 15219-1818 he Worker Adjustment and sidiary, Par Electric, transferring 70 did not report to the Billings site. While Editor: 412-402-6623/[email protected] Retraining Notification (WARN) employees onto the Par payroll. Within any one of those alternatives would Advertising: 412-402-6686/[email protected] Act requires employers to pro- 90 days, 58 of those employees were have qualified the diverse NLL loca- Address Changes: 412-402-6614 T Fax: 412-261-6438 vide 60 days notice to employees in the laid off, without any advance notice to tions as a single site under WARN, the www.acba.org event of a plant closing or mass layoff the employees and without notice to the court found that none of the three crite- Circulation 6,694 involving 50 or more employees at a state. A group of former NLL employ- ria applied, and upheld summary judg- © Allegheny County Bar Association 2007 “single site of employment.” An ees sued both NLL and its parent comment in favor of the employer. Editor-in-Chief: Thomas A. Berret, Esq. employer who fails to notify workers pany, alleging that NLL violated the Employers with multiple locations Editor: Jennifer A. Pulice, Esq. under the act may be liable for back WARN Act by failing to give notice should become familiar with the regu- Assistant Editor: Lisa M. Wolfe, Esq. pay, benefits, and attorney fees. The prior to the layoffs. The employees lations that offer guidance under the Supervising Editor: David A. Blaner 9th U.S. Circuit Court of Appeals argued that the Act applied because WARN Act in order to determine a Advertising Coordinator: Peggy Lewis recently addressed the question of over 50 individuals were affected, and particular site’s eligibility under that ■ The LJ editorial policy can be found whether certain satellite work sites because the company’s multiple proj- Act. For instance, separate facilities online at www.acba.org. could be aggregated for purposes of the ect sites should be viewed along with may be considered a single site of WARN Act, and reached the conclusion the Billings, Mont. main office location employment if they are in geographic ■ Information published in the LJ may not that they could not. Bader v. Northern as a “single site” under the Act. proximity, are used for the same pur- be republished, resold, recorded, or used in Line Layers, Inc. No. 05-36012 (9th Cir. The lower court granted summary pose, and share staff and equipment. any manner, in whole or in part, without the permission of the publishers. Sept. 10, 2007). judgment in favor of the defendants on For purposes of the WARN Act, Northern Line Layers, Inc. (NLL), a the basis that the employees’ “single employees who travel during the Letters to the Editor: The LJ welcomes letters company providing specialty construc- site” argument failed. On appeal, the course of a workweek (truckers or to the Editor. Letters should be addressed to: tion services, employed less than 50 Ninth Circuit upheld that decision. The traveling salespeople, for instance) Jennifer A. Pulice, Editor individuals at its administrative and court recognized that certain courts generally are deemed to be employees Lawyers Journal 400 Koppers Building maintenance facilities in Billings, (including the Third Circuit) have of a “home base” site (i.e., trucking 436 Seventh Avenue Mont. At the end of 2002, NLL also looked to the Department of Labor reg- terminal or home office) if they report Pittsburgh, PA 15219 employed over 160 construction work- ulations’ definition of “single site” to there for assignments, or begin and ers and project managers at construc- determine whether groups of employ- end a workweek at that particular All letters must include signature, address, and phone tion sites in 10 different states. Finan- ees in multiple locations can qualify for location. A mass lay-off or facility clo- number. All letters are subject to editing. We regret cial accounting and payroll was done in WARN Act protection. Examining sure at such a site may trigger the pro- that we can neither print nor acknowledge every letter. We will not return letters. Billings, but day-to-day operations of these definitions, the court determined visions of the WARN Act, and can lead the individual project sites were over- that the NLL employees could not to unintended liability under the Act EDITORIAL INDEX seen locally. The on-site project man- demonstrate that they were, in fact, for employers who do not fully under- ■ President’s Message ...... Page 4 agers had the authority to hire and fire employed by NLL’s Billings headquar- stand the “single site” designation. non-management crew members for ters location because: (1) they were not Bar Briefs ...... Page 8 Copyright © Dickie, McCamey & Chilcote, that manager’s particular site. assigned to Billings as a home base; (2) Lawyers’ Mart ...... Page 8 2007. All rights reserved. Continuing Legal Education ...... Page 9 ADVERTISING INDEX ACBA Judicial Merit Selection Comm. ..Page 7 ACBA Legal Placement Service ...... Page 11 Aligned Partners ...... Page 4 Alpern Rosenthal ...... Page 12 Personality-based termination not Jim Belliveau...... Page 9 Common Plea Catering ...... Page 11 Honorable Joseph A. Del Sole ...... Page 4 Dugan & Associates, P.C...... Page 6 national origin discrimination Forge Communications...... Page 5 Fort Pitt Capital Group...... Page 10 By Maria Greco Danaher ing Abdulnour’s management style, text for discrimination. Gismondi & Associates ...... Page 3 including complaints that Abdulnour In order to establish pretext, Lamberton Law Firm ...... Page 3 nder the familiar burden-shift- “demeaned” the hourly employees, Abdulnour must show that Camp- Leslie Vocational ...... Page 10 ing framework set forth by the especially the women. In October bell’s stated reason had no basis in Richard H. Lindner, Esquire ...... Page 9 USupreme Court in McDonnell 2003, after receiving continued com- fact, did not actually motivate the ter- Michael McDowell, Esquire ...... Page 10 Douglas Corp., v. Green, a protected- plaints from both Abdulnour’s super- mination, or was insufficient to war- Office Depot ...... Page 6 class employee attempting to show visors and subordinates, the opera- rant that termination. Both the lower Rothman Gordon ...... Page 5 employment discrimination must tions manager told Abdulnour that court and the Sixth Circuit found that Special Counsel...... Page 8 establish a prima facie case by show- the employment was “not working apart from his own testimony, Abdul- ing, in part, that he was treated differ- out” due to a conflict in “management nour failed to provide evidence that ently than similarly situated non-pro- style or personality.” While Abdul- he was fired for a reason other than GENDER BIAS DUTY OFFICERS tected employees. The employer then nour admits that no one made dis- poor job performance. While Abdul- If you have observed or experienced any form must articulate a legitimate business paraging remarks about his national nour also pointed out that employees of gender bias, you may contact one of the fol- reason for its actions. The burden then origin at that time, he alleges that the discussed the ongoing war in Iraq lowing members of the Gender Bias Subcom- returns to the employee to prove that operations manager told him that during lunch breaks, the court specif- mittee of the Women in the Law Division. The the reason offered by the employer is maybe the “people of Northwest Ohio ically stated that such a fact alone duty officers will keep your report confidential not its true reason, but is a “pretext for have a problem with you.” did not make it more likely that and will discuss with you actions available discrimination.” The 6th U.S. Circuit Abdulnour ultimately filed a law- Campbell fired Abdulnour because of through the subcommittee. Court of Appeals recently addressed a suit, alleging that he was discharged his Iraqi nationality. Summary judg- Kimberly Brown ...... 412-394-2323 claim of national origin discrimination based upon his national origin and in ment therefore was granted in favor Rhoda Neft...... 412-261-2753 by an Iraqi national, and held that more violation of Title VII and the applica- of Campbell. Susan Seitz ...... 412-544-7882 than a dispute over the facts upon ble Ohio law. Campbell conceded that In this case, the employer was suc- which that employee’s termination was Abdulnour established a prima facie cessful because there was a myriad of based is necessary to prove “pretext.” case (he was a member of a protected statements regarding Abdulnour’s per- Abdulnour v. Campbell Soup Supply class; he was terminated; he was gen- formance problems and his personality ETHICS HOTLINE Company, LLC, No. 06-4590 (6th Circ. erally qualified for the position; he conflicts with other employees. Abdul- The ACBA Professional Ethics Committee Sept. 19, 2007). was replaced by someone outside of nour was unable to show that those “Ethics Hotline” makes available Sarmad Abdulnour, an Iraqi the protected class), but alleged that statements against him were false, Committee Members to answer ethical national, holds citizenship in both it fired him for a legitimate business inaccurate, or not made. However, it is questions by telephone on a daily basis. Iraq and Canada. He received perma- reason, based on complaints about his important to note the court’s admoni- October nent resident status in the U.S. in poor performance and personality tion that “we are skeptical of undocu- Romel L. Nicholas...... 412-391-6920 1999, and became employed with conflicts. Abdulnour conceded that if mented accounts of employee conduct Robert L. Potter ...... 412-281-5423 Campbell in April 2003 at an Ohio true, poor performance was a “legiti- that may have been created post-termi- facility. He worked as an area super- mate business reason” for his termination.” In this case, the fact that the November visor, overseeing approximately 30 nation. Because both parties carried court found “ample evidence” of Thomas D. Arbogast ...... 412-577-5226 employees. Within weeks after their initial burdens, the case turned Abdulnour’s poor performance over- Frederick C. Leech ...... 412-288-4178 Abdulnour began to work for Camp- on whether Abdulnour could show rode the fact that there was a dearth of John H. Riordan, Jr...... 412-394-3338 bell, his supervisor began to receive that the reason set forth by Campbell written documentation regarding that complaints from employees regard- for his termination was simply a pre- Continued on page 10 OCTOBER 12, 2007 LAWYERSJ OURNAL PAGE 3 Successor board cannot terminate finance-related agreements

By Jason Miller In November 2000, under a newly were the assets of the bondholders. court cautioned that in applying this appointed board of directors, the The majority of the Commonwealth principle courts should not lose sight he Pennsylvania Supreme Court Authority notified PAS that it intended Court also agreed with PAS’s alterna- of the roles of the General Assembly recently held that a successor to terminate the contracts without tive argument that §5607(d)(12) of the and the courts in terms of establishing Tboard of directors of the cause. PAS initiated a declaratory Act represents a statutory exception to public policy. Dauphin County General Assembly judgment action against the Authority the general rule that current governing The court cited Chichester Sch. Dist. could not terminate, without cause, seeking a judicial determination that bodies cannot bind their successors v. Chichester Educ. Ass’n, 750 A.2d 400 contracts executed by its predecessor the contracts may not be terminated with regards to government functions. (Pa.Cmwlth. 2000) where the Common- board for the administration of certain outside the terms of the agreements. On appeal, the Pennsylvania Supreme wealth Court upheld collective bar- school-related financing activities. The trial court, however, entered a Court characterized the issue as whether gaining agreements entered into by a Program Admin. Services, Inc. v. declaratory judgment in the Authori- the board of directors of the Authority predecessor board by relying upon the Dauphin County Gen. Auth., No. 136 ty’s favor, determining that agree- may terminate, without cause, contracts statutory authority for such agree- MAP 2005 (Pa. Aug. 20, 2007). Statuto- ments entered into by the predecessor executed by its predecessor board relat- ments contained in the Public Employ- ry authorization for such agreements Authority could not be enforceable ing to the administration of certain ee Relations Act. The court in Chi- prevents termination not provided for against the current Authority. school-related financing activities. chester acknowledged that the prior in the agreements. Id. Sitting en banc, a divided Common- The court first noted that both the board’s actions were governmental in The Dauphin County General wealth Court reversed. The majority trial court and the Commonwealth character but noted the statutory Authority (Authority) is a corporate stated that the central question was one Court focused on the distinction authority the board relied upon in agency of the Commonwealth of Penn- of whether the program administration between contracts relating to govern- entering into such agreements. sylvania created by Dauphin County agreements involved a government ment functions and contracts relating Discussing the present case, the under the Municipality Authorities Act function or a proprietary function. to proprietary or business functions. court noted that the General Assembly (Act), 53 Pa.C.S. §§5601-5623. Pursuant According to the majority of the Com- The court agreed that such a distinc- has authorized municipal authorities to to the Act, the Authority may make monwealth Court, contracts involving tion has been recognized in Pennsylva- enter into agreements in connection agreements with bondholders and oth- government services may be terminat- nia since the mid 1800s. Moreover, the with bonds as set forth in 53 Pa.C.S. ers in connection with bonds that it ed by a successor body without cause court noted that both parties reference §5607(d)(6) and (12). According to the deems advisable. and irrespective of the termination this difference and present opposing court, §§5607(d)(6) and (d)(12) In 1986, the Authority launched a date or procedures for termination set arguments as to where the functions at “embody a legislative policy decision program geared towards providing forth in the agreement. The Common- issue fell. Discussing the history of this favoring predictability, stability, and financial assistance to Pennsylvania wealth Court then stated that the test to distinction at length, the court noted certainty with regard to some range of schools. Known as “School Pool I,” the be applied to determine whether an that “the precept that governmental matters connected with public bond program was funded by proceeds from activity is governmental or proprietary contracts are voidable in some range issues by municipal authorities.” Pro- the issuance of 40-year bonds. Program is the test set forth in County of Butler of circumstances is a common-law rule gram Admin. Services, Inc. v. Dauphin Administration Services, Inc. (PAS) v. Local 585, SEIU, AFL-CIO, 631 A.2d premised upon considerations of pub- County Gen. Auth., No. 136 MAP 2005. was the program administrator for 1389 (Pa.Cmwlth. 1993). Under this lic policy.” Program Admin. Services, The court noted that bond terms can School Pool I. In 1997, the Authority test, courts are to consider whether the Inc. v. Dauphin County Gen. Auth., No. be as long as 40 years, thus these provi- started a similar program, “School Pool activity: (1) is one the government is 136 MAP 2005 (Pa. Aug. 20, 2007). The Continued on page 10 II,” and PAS was again made the pro- not statutorily required to perform; (2) gram administrator via agreement. also may be carried on by private Under the program administration enterprise; or (3) is used as a means of agreements for School Pool I and II, raising revenue. bonds were purchased by private The Commonwealth Court applied investors and the proceeds pooled for the test to the instant case and deter- the Authority to lend to qualifying mined that the Authority’s money-lend- school districts for construction or ing activity was proprietary in nature reconstruction, debt refinancing, and since the Authority was not statutorily other dedicated purposes. School dis- required to perform this activity and tricts then repay the principal and since it is an activity carried on by pri- interest on the loans and the interest is vate lenders as well. Moreover, the paid to bondholders while the principal court distinguished the Pennsylvania is returned to the pool to be re-loaned. Supreme court holding in Lobolito Inc. PAS, as the program administrator, v. North Pocono Sch. Dist., 755 A.2d markets the programs to school dis- 1287 (Pa. 2000) since Lobolito involved tricts, assists districts with their appli- the decision of whether to build a cations, calculates note payments, bills school, a government function. In the the districts, assists the Authority in instant case, the Authority is not securing investment funds from banks, involved in the decision to build and also performs other functions. The schools, but was only involved in the program administration agreements financing of such projects. The Com- provide that PAS continue as the pro- monwealth Court also distinguished gram administrator until: (1) no por- State Street Bank & Trust Co. v. Com- tion of the bonds remain outstanding; monwealth, 712 A.2d 811 (Pa.Cmwlth. (2) PAS continues to fail to perform in 1998), on the basis that in State Street any material respect; or (3) the parties the funds being lent were state assets mutually consent to terminate. whereas in the present case the funds PAGE 4 LAWYERSJ OURNAL OCTOBER 12, 2007

From the ACBA

P RESIDENT’ S M ESSAGE Informing citizens about “Merit Retention” of qualified judges

By Ken Gormley Retention elections, the ernment, as well as to The Judicial Merit Selection Com- ACBA’s Judicial Merit discuss the purpose of mittee and the board of governors of ne of my foremost duties as Pres- Selection Committee the Merit Retention the ACBA, in approving the above pub- ident of the Allegheny County (its Political Action system established by lic education campaign, concluded that OBar Association is to inform the Committee) recom- the Pennsylvania Con- such a plan will enhance voter under- organization’s 6,500 members when mended to the board of stitution; standing of this crucial electoral important decisions are reached by our governors that the 5) The Judicial Merit process under our Pennsylvania Con- board of governors. One such important ACBA suspend its Selection Committee stitution and heighten citizen aware- decision, reached last month, relates to usual “umbrella cam- will run public educa- ness of those qualified judges who are the upcoming judicial retention elec- paign” on behalf of tion ads in local news- seeking retention. tions in November. retention judges from papers prior to the It is my belief that the plan adopted As you know, the Pennsylvania Con- Allegheny County. November election, by the board of governors is a sound stitution in Article V, Section 15, estab- Rather than in essence announcing the ACBA’s and positive one. Last month, I had the lishes a “retention” system for judges running campaigns for “recommended” ratings privilege of attending a luncheon in the in this Commonwealth, which has been those judges who of the three Allegheny State Capitol hosted by the Pennsylva- in place since the State Constitutional pledge not to raise County Common Pleas nia Judicial Independence Commission Convention of 1967-68. The so-called their own funds, mem- Ken Gormley Court Judges (Presi- and the PBA, at which retired United Merit Retention approach, designed as bers of the Judicial dent Judge Joseph M. States Supreme Court Justice Sandra a compromise between partisan elec- Merit Selection Com- James, Judge Lester G. Day O’Connor served as keynote tions and an appointive system, sought mittee urged a different approach this Nauhaus, and Judge Terry O’Brien), of speaker. Justice O’Connor, who stepped to shield judges from the shifting winds year, focusing on educating the public the two Superior Court Judges (Judge down from the nation’s highest court in of politics once they were elected via with respect to the retention election John L. Musmanno and Judge Joan 2005, has continued to work tirelessly, popular election. In a “Merit Reten- process and informing citizens about Orie Melvin), and of the one Common- speaking at venues across the United tion” election year, voters determine judges running for retention. Based wealth Court Judge (Judge Bernard L. States to educate the citizenry about whether a sitting judge has done his or upon the Judicial Merit Selection Com- McGinley) who reside in Allegheny the importance of an independent, non- her job satisfactorily, based on the mittee’s recommendation, the board of County and who were rated “recom- political judicial system. entirety of his or her judicial record. governors has voted as follows: mended” for Merit Retention by mem- Justice O’Connor reminded the Assuming the judge is qualified and 1) Judges up for retention will be bers of the ACBA. overflow audience in our State’s Capi- receives a total of over 50 percent free to raise funds, or not to raise 6) The Judicial Merit Selection tol that James Madison, in advocating “yes” votes, he or she is retained, free funds, as they deem appropriate; Committee will post the ACBA’s 2007 the ratification of the United States from the distractions and scars of polit- 2) The bar association Judicial Merit Retention Ratings on its new website to Constitution, called the judiciary an ical jousting. Selection Committee will not host its educate voters and attorneys interested “impenetrable bulwark” against Over the last four decades, the vast usual cocktail party to raise funds for in learning more about judges rated encroachments on our most cherished majority of judges have been retained an umbrella campaign; thus, the JMSC qualified by the bar association. The freedoms. Without a truly independent by the citizens of Pennsylvania after will not put attorneys and law firms in Judicial Merit Selection Committee judiciary, said Justice O’Connor, our being rated qualified by their bar asso- the position of receiving solicitations website will also provide a link to the entire system of democracy can “break ciations. The overriding purpose of this from both the bar association and can- Pennsylvania Bar Association’s “Vote down.” This does not mean, she insist- Merit Retention system is to ensure didates for retention; Smart” website, for a similar purpose; ed, that judges are free to decide cases that sitting judges are able to remain 3) Rather than run its usual umbrel- 7) The Judicial Merit Selection based upon their “personal views.” independent, i.e. free from outside la campaign, the Judicial Merit Selec- Committee will not serve as the official Rather, it means that judges must be political pressures, so that they can tion Committee will spend special bar campaign committee for any judge par- able to reach decisions “fair and render decisions in an impartial fash- association funds to engage in a public ticipating in the public education cam- impartially, based on the laws and Con- ion based upon their disciplined inter- education campaign with respect to the paign this year. Rather, the public edu- stitution, without fear of retaliation.” pretations of the law. importance of Merit Retention under cation campaign will occur in lieu of It is because our courts have been The American Bar Association, in our Pennsylvania Constitutional sys- the usual umbrella campaign; protected from the vagaries of politics laying out its standards for properly tem and provide information with 8) Through the leadership of attor- and pressure from special interest assessing sitting judges, has indicated respect to those judicial retention can- ney Mark Martini and other volunteers, groups, Justice O’Connor concluded, that the relevant qualities to be evalu- didates rated qualified by the ACBA our Judicial Merit Selection Committee that they have fared so well, avoiding ated should include experience, and the Pennsylvania Bar Association; PAC plans to assist in recruiting lawyer the disastrous problems that have integrity, professional competence, 4) The ACBA’s Judicial Merit Selec- volunteers to spend time at the polls on faced judicial systems in countries like judicial temperament, preparation, tion Committee will recruit lawyer vol- election day answering questions of cit- Russia, Uganda, Zimbabwe, Ecuador attentiveness, service to the law, and unteers to go into the community in izens concerning Merit Retention, as and Pakistan. quality of judicial opinions. Allegheny County to hold public well as handing out informational cards Over the next several weeks, the This year, because there has been so forums for the purpose of discussing that list those judges rated recom- Judicial Merit Selection Committee much confusion and misinformation the vital role of an independent judici- mended for retention by the ACBA and will be sending out e-mail messages to surrounding the impending Merit ary in our democratic system of gov- the PBA. Continued on page 10

President Judge Emeritus Joseph A. Del Sole (ret.) Judge Del Sole’s experience as a trial attorney, trial judge, Calendar Con- trol Judge and Superior Court Judge, provides unique insight for resolv- ing civil disputes. As a trial judge, he presided over numerous jury and non-jury trials and settlement conferences. As an appellate court judge, he has reviewed and authored decisions on thousands of verdicts. He is available to provide mediation, arbitration and case evaluation services throughout Pennsylvania.

Of Counsel Del Sole Cavanaugh Stroyd LLC • The Waterfront Building 200 First Avenue, Suite 300 • Pittsburgh, Pennsylvania 15222 Telephone: 412-261-2393 • Fax: 412-261-2110 • [email protected] • www.dscslaw.com OCTOBER 12, 2007 LAWYERSJ OURNAL PAGE 5 Supreme Court of Pennsylvania issues new order for out-of-state lawyers ■ Disciplinary Board of the Supreme Court of Pennsylvania reminds in-state attorneys of Rule 8.3

By Jamie Fulginiti ices for Pennsylvanians who cannot tration of justice to assure that the Pennsylvania Lawyers Fund for afford to pay for those services. The fee integrity of court proceedings is pro- Client Security Board and the Civil n June 29, 2007 the Supreme applies to those practicing in the state’s tected, and the duty to the courts and Procedural Rules Committee. The Court of Pennsylvania issued trial and appellate courts. to their clients to make sure the deci- rules are the latest in a series of Oorders to amend rules governing This new addition to pro hac vice is sion-making process is not under- administrative enhancements to civil case procedures and attorney the first uniform statewide rule to gov- mined by the participation of unquali- emerge from the Supreme Court’s 17 professional conduct. The orders took ern an evaluation of the application fied individuals. advisory boards and committees that effect on Sept. 4, 2007 and will estab- that requires an admission fee to prac- Lawyers having a concern as to the significantly enhance court opera- lish a standardized method for deter- tice in the Commonwealth. licensure of out-of-state lawyers can tions statewide. Over the last year, the mining eligibility for out-of-state attor- These amendments propose that contact the Office of Disciplinary court has implemented new rules to neys to practice in Pennsylvania as Pennsylvania lawyers who sponsor a Counsel. However, while the Discipli- streamline and standardize foreign counsel pro hac vice—a legal term pro hac vice lawyer or encounter an nary Board does not have jurisdiction adoption registrations; enhanced the meaning “for this occasion.” out-of-state lawyer, abide by Rule 8.3 over out-of-state attorneys not admit- administrations of trusts and estates In addition to the new standards, the that states all lawyers have a general ted pro hac vice, the board has infor- through new forms; boosted public court also adopted a first-time-ever fee duty to report lawyer misconduct, mation to make a referral to the disci- trust and confidence in the courts for pro hac vice admission, and desig- regardless of the jurisdiction where the plinary agency that does. under a new financial records review nated the proceeds to go to the Interest suspect lawyer is licensed. The new rules were adopted with policy; and developed a Public Health On Lawyers Trust Account (IOLTA) Lawyers in Pennsylvania are input from the IOLTA Board, Pennsyl- Law Benchbook to prepare for a program. IOLTA funds civil legal serv- reminded of their duty to the adminis- vania’s Board of Law Examiners, and major threat, such as a pandemic. ■

BLI participation opens door to future opportunities

By Tracy Carbasho “We want to know what past chairs Although 25 hopeful students to the class, each student is assigned to learned from their experience. It will applied, only 15 were accepted. Schnip- a mentor from the 16-member YLD articipation in the ACBA’s Bar also be a good experience for the chairs pert said the number of students is lim- Council, class members must attend Leadership Initiative can open to realize that their tradition is being ited to between 12 and 15 for numerous board meetings for all of the ACBA Pthe door to future opportunities. carried on,’’ said Coffey. reasons. For example, each student entities at some point throughout the “The BLI is a wonderful opportunity The leadership program requires must make a tremendous commitment Continued on page 10 to help lawyers network, grow their students to make a commitment to current practice and meet new learn about the ACBA and to get clients,’’ said Hal Coffey, an associate involved with projects that help the at Grogan Graffam who is serving as local community. This is the seventh the leader, or “professor,’’ for this BLI class. year’s class. “An attorney in our cur- Dorie Schnippert, director of mem- rent BLI class contacted me recently bership services and continuing legal about a client who needed help with a education for the ACBA, also serves as real estate matter and I needed to refer YLD liaison for the BLI program. a family law matter to her.’’ “The BLI was developed out of an Coffey was a student in the 2002-03 acknowledged need for additional lead- BLI class. He is also the immediate ership training for the young lawyers of past chair of the ACBA’s Young the Allegheny County Bar Associa- Lawyers Division. The class experi- tion,’’ she said. “Its goal is to aid and ence helped him hone his leadership encourage young lawyers in developing skills, gave him a behind-the-scenes their professional and community lead- look at how the bar association oper- ership skills and to position themselves ates and made him realize that he to assume a leadership position with wanted to become more involved with the ACBA.” the ACBA. “The YLD has developed this excit- As the leader of this year’s class, he ing program for qualified young has requested that each student contact lawyers who have an interest in partic- several individuals who chaired the ipating in the ACBA, but who have had YLD going all the way back to the early little or no involvement in the associa- 1950s. His goal is to start building a tion thus far,’’ added Schnippert. history of the YLD that can be used as “There were more applicants than ever a resource for future BLI classes. for this year’s class.’’

NEVER SAY If you won’t, someone else RULE ”NO COMMENT” ONE will. Don’t concede the story to the guy who will talk. Craft one positive message, Having the right team then deliver it early … and often. makes all the difference To learn more about our litigation support expertise, call Patrick Mangus or Daryl Labor & Employment Attorneys Clemmens at 412-279-4500. Pittsburgh, Pennsylvania (412) 338-1100 8 RULES FOR www.rothmangordon.com WINNING IN THE COURT OF PUBLIC OPINION.

412-279-4500 | www.forgepr.com Louis B. Kushner, Esq. Stephen H. Jordan, Esq. Alan C. Blanco, Esq. PAGE 6 LAWYERSJ OURNAL OCTOBER 12, 2007 Young Lawyers “Step Out” to help students ■ The ACBA’s Young Lawyers Division needs volunteer attorneys to give presentations for the Stepping Out Program

By Stephanie R. Reiss focuses on a broad range of legal topics vocational technical schools. A pam- will run from October through including contractual agreements, phlet detailing all of the topics in the December. Although Stepping Out is ttention attorneys! The Public employment, wills, marriage, alcohol program is provided to both the vol- administered by the Young Lawyers Service Committee of the Young and drugs, small claims court, and vot- unteer attorney and the individual Division, any volunteer attorney is A Lawyers Division of the Alleghe- ing. The Berks County Bar Association teacher. The topics are general encouraged to speak and many volun- ny County Bar Association needs YOU founded Stepping Out in 1986. Since enough that an attorney need not teers from the senior bar have pre- to participate in the Stepping Out Pro- that time, Young Lawyers Divisions receive any training prior to a presen- sented to students in the past. Efforts gram for high school students. Each across the Commonwealth have spon- tation but a training session has been are made to match up schools with year, volunteer attorneys participate in sored Stepping Out. In Allegheny scheduled for Oct. 26, 2007 at noon at speakers who reside in the same geo- this program which is designed to edu- County, a letter explaining the pro- the ACBA office on the 4th floor of the graphic area. Any lawyer who is inter- cate high school students, and particu- gram was sent in August to the princi- Koppers Building. Last year the local ested in participating in the Stepping larly graduating seniors, about legal pals of all of the Allegheny County Stepping Out Program was a resound- Out Program is invited to contact issues that they might face as they and City of Pittsburgh public high ing success and we hope to duplicate Stephanie Reiss at 412-560-3378 or “step out” into the world. The program schools, private high schools and that success this year. The program [email protected]. ■

ACBA Services Inc.’s founding board members step down after nine years

By Tracy Carbasho

The extraordinary vision of the original leaders of ACBA Services, Inc. positioned the company for the grow- ing success it continues to experience. “Their vision helped us take an idea and make it a reality,’’ said ACBA Executive Director David A. Blaner. “We’re fortunate to have had their leadership and advice on the development of ACBA Services.’’ Founded in 1998 as the for-profit subsidiary of the ACBA, Services, Inc. is a full litigation support provider, offering a long list of technology-related services and rental equipment to local legal entities and businesses. Among the available services are videoconferencing, video depositions, courtroom video playback, computer- based and real-time court reporting, photography, media duplication and editing, digital video recording, digital trial presentation and synchronizing transcripts with video footage. “ACBA Services was the brainchild of Jim Smith more than anyone,’’ said Blaner. “He always envisioned a for- profit subsidiary operating at peak performance and generating non-dues revenue. The ACBA is actually unique among bar associations because we produce more non-dues revenue than any other metropolitan bar association in the United States.’’ Blaner said the ACBA operates with PHOTO BY: JENNIFER PULICE 23 percent funding derived directly ACBA President Ken Gormley (left) presents John Gismondi (center) and Jim Abraham (right), founding members of the Continued on page 10 ACBA Services, Inc. board of directors, with plaques recognizing their years of service to the ACBA’s for-profit subsidiary.

The Allegheny County Bar Association is pleased to announce to all members a new and exciting endorsement program with the Business Solutions Division of Office Depot. This new partnership will provide members substantial savings on their office supply needs. A few of the benefits available include:

I ACBA core list of 150 specially priced items with an additional 50 wildcard items to be chosen specific for each member. Discounts applied up to 88% off manufacturer list price. Items can be reviewed quarterly to ensure they mirror buying patterns and reflect best value items. I Up to 7% discount off of the listed price shown on www.officedepot.com for non-core items (excludes technology items) I Discount pricing available at Office Depot store locations through either an Office Depot Store Purchasing Card or a company credit card attached to the ACBA account I ACBA discounts applied to Design, Print & Ship Depot services at store locations I Access to more than 15,000 items in the full-line catalog I Discounts for ACBA members on 1,200 high-end items of Ad Specialty products I High-end and hard-to-find Technology Solutions from Tech Depot™ I Customizable N-30 billing I and much more! REQ.ADV.09.0307

Registration and setup are required to take advantage of these benefits. To get started or learn more about the program, please contact your personal representative Bill Gallagher at 877.353.9100 ext. 4114 or [email protected]. OCTOBER 12, 2007 LAWYERSJ OURNAL PAGE 7 Strengthening your clients’ non-compete agreements: important checkpoints

By Jay D. Marinstein and relationships, which are developed training is a neophyte. The training the agreement seeks to safeguard a Carl J. Rychcik and nurtured by the employee, are must be more than communicating trade secret, it should be no longer owned by the employer, not by the general techniques; it truly needs to than the time it takes the employer to oday’s business world is filled employee. John G. Bryant Co. v. be specialized. develop the trade secret. If the agree- with companies eager to hire key Sling Testing & Repair, Inc., 369 ment seeks to compensate the employ- A.2d 1164 (Pa. 1977). Customer good Be sure the non-compete er for providing specialized training, Tindividuals away from their com- petitors. Clients have increasing needs will-based covenants are appropri- agreement is reasonably limited in it should be no longer than the time it to protect their investments by having ate when employees have routine duration and territory. takes the employer to develop the spe- their employees sign non-compete contact with your clients’ cus- cialized training. In some jurisdictions, courts will agreements. Unless properly drafted, tomers. It may, however, be difficult As to territory, in customer good- not enforce non-compete agreements the covenants may provide limited to to enforce customer good will-based will cases, the territory should be if the covenants, as written, are not no protection and cause devastating covenants if the customers are well limited to the geographic area cov- reasonable in duration and/or geo- consequences not only to your client’s known in the industry or when the ered by the employee during his or graphic territory. However, in other business, but also to your attorney- product or service is sold strictly on her employment. Victualic Co. v. Tie- jurisdictions, like Pennsylvania, client relationship. This article price (i.e. a commodity), rather than man, 2007 WL 2389795 (3d Cir. courts have discretion to modify the addresses important considerations based on relationships. (Pa.)). For trade secret cases, the agreement, if necessary, to make the that practitioners in Pennsylvania Trade secrets provide the pro- non-compete agreement may extend duration and territory reasonable. should consider when drafting non- tectable interest if the employee has to areas where the product is prima- Hess v. Gebhard & Co., 808 A.2d 912 compete agreements. access to information that is owned rily sold and/or services are ren- by the company, is not publicly avail- (Pa. 2002). The safest course of action, dered by the employee. Fres-Co Sys. Be sure the non-compete able, and provides the company with though, is to tailor the duration and USA, Inc. v. Bodell, 2005 WL 3071755 agreement supports a legitimate a competitive advantage. Omicron territory component of the covenant to (E.D.Pa.). Systems, Inc. v. Weiner, 860 A.2d 554 the specific employee. protectable interest. (Pa.Super. 2004). In such cases, it is While Pennsylvania courts have Be sure the non-compete Because non-compete agreements not necessary for the employee to generally upheld covenants for terms agreement is supported by seek to restrict competition, they are have contact with customers. Trade of one to three years, courts apply adequate consideration. strictly construed. Non-competes, secret-based covenants should gen- greater scrutiny to longer covenants. A non-compete agreement is gen- under Pennsylvania law, are only erally identify the categories of The duration of the covenant should erally supported by adequate consid- enforceable if they support a legitimate trade secrets (i.e. customer lists, for- be no greater than is reasonably nec- eration if it is entered into at the time protectable interest, such as customer mulas, etc.), which employees are essary to protect the employer’s legit- of the initial employment. While some goodwill, trade secrets and specialized expected to be exposed to during imate business interests. Robert states allow “continued employment” training. Thermo-Guard, Inc. v. their employment. Clifton Assoc., Inc. v. O’Connor, 487 to serve as adequate consideration Cochran, 596 A.2d 188 (Pa.Super. Covenants can also be supported A.2d 947 (Pa.Super. 1985). If the non- for a non-compete, many states, such 1991). It is prudent to identify the pro- by providing employees with special- compete agreement seeks to protect as Pennsylvania, do not. In these tectable interest in your clients’ non- ized training and skills. Thermo- customer goodwill, the agreement jurisdictions, a non-compete agree- compete agreements. Guard, 596 A.2d 188. This interest is should be no longer than the time it ment entered after the start of The Pennsylvania Supreme Court most appropriately applied in cases will take a new hire to demonstrate his has made it clear that customer where the employee receiving the or her effectiveness to customers. If Continued on page 11

Keep These Local Qualified Judges… Vote Yes!

Allegheny County Court of Common Pleas

Honorable Honorable Honorable Joseph James Lester Nauhaus Terry O’Brien

Commonwealth Court Superior Court

Honorable Honorable Honorable Bernard McGinley Joan Orie Melvin John Musmanno

All of these judges are recommended by the Allegheny County Bar Association. For more information, visit our Judicial Vote 2007 website at www.judicialvote07.org

Paid for by the Judicial Merit Selection Committee, a political action committee of the Allegheny County Bar Association. PAGE 8 LAWYERSJ OURNAL OCTOBER 12, 2007

Bar Briefs Lawyers’ Mart

News and Notes Petrina joins Zimmer Kunz as a senior associate and will concentrate his prac- APPRAISALS EXPERT WITNESS MEDICAL Chautauqua Institution Board of tice on toxic tort litigation and employ- ANTIQUE AUTO APPRAISALS for all vehicles 1900 to 1990. Cardiology/Medicine Board Certified, Mid-Atlantic Region, Trustees elected George T. Snyder to ment law. Krescanko joins as an associ- Expert Witness. Certified Appraiser - K. Merusi. 412-731-2878. defense/plaintiff; product/med mal; knowledge/experi- the position of chairman. Snyder is a ate in the asbestos litigation group. ence with dangers of CPOE Devices and EHR Health IT partner in the firm of Stonecipher, Cun- ◆ ◆ ◆ GILMORE AUCTION GALLERIES—Estate appraisals. Com- Systems, [email protected]. ningham, Beard & Schmitt, P.C. His Edgar Snyder & Associates plete auction service. (724) 684-4666. James R. Gilmore. concentration has been in the area of announced the appointments of Diane bankruptcy/insolvency law. Clark and Brian Wuenshell. Both join PROCESS SERVICE ◆ ◆ ◆ DOCUMENT EXAMINER/ the personal injury litigation team, and INVESTIGATING Wendy Denton are working at the law firm’s Pitts- HANDWRITING Heleen spoke before burgh office. THE IMPOSSIBLE WE DO RIGHT AWAY! MIRACLES TAKE a group of approxi- ◆ ◆ ◆ J. WRIGHT LEONARD, BCFE, CDE. Certified. Experienced in A LITTLE TIME. EMPIRE INVESTIGATION (412) 921-4046. mately 80 people in Vuono & Gray, LLC announced that Federal, State & Local Courts. Testimony in Civil & Criminal Visit us on our website, www.empireinv.com August as part of Les A. Goldstrom, Jr. has joined the Matters. 215-735-4000. Rep. Randy Vulak- firm as an associate. Goldstrom will SETTLEMENT SERVICES ovich’s Older and concentrate his efforts in the areas of ECONOMIST/ Wiser Seminars. corporate and commercial transac- LOCAL-KNOWLEDGE.COM. 3 interactive online real ◆ ◆ ◆ tions, real estate, construction law and VOC. EXPERT estate reports: Assessment Appeal Diagnosis, Projected Todd Berkey and estate and trust planning. ■ HUD-1, and Pre-settlement Tax Information. Covers all 67 Cynthia Danel, part- WM. HOUSTON REED, Ph.D.—20 yrs. of forensic econom- Pennsylvania counties, 2,565 municipalities and 501 Wendy Denton ners with the law All submissions for “Bar Briefs” or “In ics & vocational eval. expertise in one report. 412-415-1136. school districts. FREE. Heleen offices of Edgar Sny- Memoriam” should be sent to the atten- der & Associates, tion of David Blaner, ACBA Executive EXPERT WITNESS TOXICOLOGY have been certified as members of the Multi-Million Dollar Advocates Forum. Director, 400 Koppers Building, 436 Sev- ACCIDENT RECONSTRUCTION, FORENSIC ENGINEERING. Clinical Toxicologist, Biomedical Scientist, Expert Witness, sev- ◆ ◆ ◆ enth Ave., Pittsburgh, Pa., 15219, or e- Ira S. Kuperstein, Ph.D., P.E. Extensive experience. (412) eral years experience of court testimonies. www.drknrao.com Louis M. Tarasi, Jr., a partner with mailed to [email protected]. 318-4253. 412-849-1292 (cell); 412-833-4643 (home). Tarasi & Tarasi, P.C., has been certified as a member of the Multi-Million Dol- lar Advocates Forum. ◆ ◆ ◆ Tammy Singleton-English of Single- ton-English Law Offices, has been published in the global directory of Who’s Begin your day with us at the new Who, which recognizes professionals who are leaders in their respective fields. People on the Move www.pittsburghlegaljournal.org The law firm of Zimmer Kunz, PLLC announced the addition of associates Joseph Petrina and Ryan Krescanko.

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Allegheny County Continuing Legal Education Bar Association sponsored by the ACBA and PBI

CLE PROGRAMS ESTATES PRACTICE

ACBA Registration Information: Register for any of these programs via: Mail: CLE Dept., ACBA, 400 How to Prepare the Pennsylvania Inheritance Tax Return Koppers Building, 436 Seventh Avenue, Pittsburgh, PA 15219; Fax 412-261-6438; Phone: 412-402-6612. Featuring a practical “walk-through” of completed returns. Emphasis will PBI Registration Information: MAIL: PBI, 5080 Ritter Road, Mechanicsburg, PA 17055-6903; FAX: (717) 796-2348; PHONE: (717) 796-0804 or (800) 932-4637; ON THE WEB: www.pbi.org. All PBI CLE be on practical, “real world” problems that arise and how to deal with them. programs are sponsored by The Pennsylvania Bar Institute & The Allegheny County Bar Association. Come get your questions answered. Credits: 4 substantive • When: Tuesday, October 23, 2007; 8:30 a.m. to 12:45 p.m., registration begins at 8:00 a.m. • Where: Koppers Building, 9th Fl., 436 Seventh Ave. • Tuition includes course book ADMINISTRATIVE LAW and lunch: Member-Pa., or any co. bar assn.: $189; Member admitted after 1/1/03: $169; Nonmem- ber: $209; Paralegals attending with an attorney: $99; Paralegals attending alone: $129; Judges & judi- Update on the Lobbying Disclosure Act cial law clerks: $95; Judges & judicial law clerks admitted after 1/1/03: $85. Register with PBI. Opportunity to hear from and ask questions of faculty panel of which three are members of the committee that drafted the regulations, ETHICS reporting forms and advisory opinions. Credits: 4 substantive • When: Friday, October 19, 2007; 9:00 a.m. to 1:15 p.m., registration begins Bridge the Gap for Newly Admitted Attorneys at 8:30 a.m. • Where: Live via Videoconference—Koppers Building, 9th Fl., 436 Seventh Ave. • Tuition Credits: 4 ethics • When: Wednesday, November 7, 2007; 9:00 a.m. to 1:30 p.m.; registration begins includes course book: Member-Pa., or any co. bar assn.: $189; Member admitted after 1/1/03: at 8:30 a.m. • Where: ACBA Conference Center Auditorium, 920 City-County Building • Cost: Free $169; Nonmember: $209; Paralegals attending with an attorney: $99; Paralegals attending alone: to newly admitted attorneys and $100 for all others. Newly admitted attorneys have two years to com- $129; Judges & judicial law clerks: $95; Judges & judicial law clerks admitted after 1/1/03: $85. Reg- plete this course as part of their post admission requirement. Register with ACBA. ister with PBI. BUSINESS LAW INTELLECTUAL PROPERTY India and China: The Next Ten Years Legal and Intellectual Property Aspects of Sports This course will focus on what you cannot afford to ignore and the Entertainment Industry about doing business with these emerging giants. This program covers important clauses in agreements with client representatives as well as licensing/merchandizing & Credits: 5 substantive, 1 ethics (Must attend entire program to receive ethics credit) • When: Thursday, November 8, 2007; 8:30 a.m. to 4:30 p.m., registration begins at 8:00 a.m. • Where: Koppers Build- common agreements in sports, music, publishing & higher arts industries. ing, 436 Seventh Ave., 9th Fl. • Tuition (includes course book): *Early Registration Discount - Credits: 6 substantive • When: Friday, October 12, 2007; 8:30 a.m. to 4:15 p.m.; registration begins Member-Pa., or any co. bar assn: $249; Member admitted after 1/1/03: $229; Nonmember: $269; Para- at 8:00 a.m. • Where: Live via Videoconference—Koppers Building, 9th Fl., 436 Seventh Ave. • Tuition legals attending with an attorney: $99; Paralegals attending alone: $129; Judges & judicial law clerks: includes course book and lunch: Member-Pa., or any co. bar assn.: $229; Member admitted after $125; Judges & judicial law clerks admitted after 1/1/03: $115. *Standard Registration - Member-Pa., 1/1/03: $209; Nonmember: $249; Paralegals attending with an attorney: $99; Paralegals attending or any co. bar assn: $274; Member admitted after 1/1/03: $254; Nonmember: $294; Paralegals attend- alone: $129; Judges & judicial law clerks: $115; Judges & judicial law clerks admitted after 1/1/03: ing with an attorney: $124; Paralegals attending alone: $154; Judges & judicial law clerks: $150; $105. Register with PBI. Judges & judicial law clerks admitted after 1/1/03: $140. *(Registrations received more than 2 days before the presentation qualify for the Early Registration Discount.) Register with PBI. HEALTH LAW CIVIL LITIGATION A Day on Health Law Selecting and Influencing Your Jury Fast-paced program of six timely topics taught by leaders in Practical pretrial and trial strategies that win cases. Learn to listen the field; filled with up-to-date materials with new perspectives to “clues” from your jurys’ attitudes and beliefs to shape your case, and insights, and practical tips to put to use immediately. your delivery, etc., and to transform your practice! Credits: 5 substantive,1 ethics • When: Tuesday, October 16, 2007; 8:30 a.m. to 3:40 p.m., registration Credits: 6 substantive • When: Friday, October 26, 2007; 8:30 a.m. to 4:00 p.m., registration begins begins at 8:00 a.m. • Where: Live via Videoconference—Koppers Building, 9th Fl., 436 Seventh Ave. • at 8:00 a.m. • Where: ACBA Auditorium, City-County Building, 414 Grant St. • Tuition includes Tuition includes course book and lunch: Member-Pa., or any co. bar assn.: $249; Member admit- (273 pg.) course book: Member-Pa., or any co. bar assn.: $289; Member admitted after 1/1/03: ted after 1/1/03: $229; Nonmember: $269; Paralegals attending with an attorney: $99; Paralegals $269; Nonmember: $309; Paralegals attending with an attorney: $99; Paralegals attending alone: attending alone: $129; Judges & judicial law clerks: $125; Judges & judicial law clerks admitted after $129; Judges & judicial law clerks: $145; Judges & judicial law clerks admitted after 1/1/03: $135. Reg- 1/1/03: $115. Register with PBI. ister with PBI. REAL ESTATE PRACTICE Litigating Tractor Trailer Accidents Attend to learn how to handle cases in this specialized area of personal injury New Issues in Condominium and practice governed by additional laws and regulations not applicable to other types of personal injury cases. Homeowner Associations: Conflicts and the Courts A “must” course for attorneys working with developers, Credits: 6 substantive • When: Tuesday, November 6, 2007; 9:00 a.m. to 4:30 p.m., registration begins at 8:30 a.m. • Where: Koppers Building, 436 Seventh Ave., 9th Fl. • Tuition (includes course book associations, unit owners or municipalities. Hear pros and cons and lunch): *Early Registration Discount - Member-Pa., or any co. bar assn: $249; Member admitted of some creative conflict resolution techniques and more! after 1/1/03: $229; Nonmember: $269; Paralegals attending with an attorney: $99; Paralegals attending alone: $129; Judges & judicial law clerks: $125; Judges & judicial law clerks admitted after 1/1/03: Credits: 4 substantive • When: Thursday, October 18, 2007; 9:00 a.m. to 1:15 p.m., registration $115. *Standard Registration - Member-Pa., or any co. bar assn: $274; Member admitted after 1/1/03: begins at 8:30 a.m. • Where: Live via Videoconference—Koppers Building, 9th Fl., 436 Seventh Ave. • $254; Nonmember: $294; Paralegals attending with an attorney: $124; Paralegals attending alone: Tuition includes course book: Member-Pa., or any co. bar assn.: $189; Member admitted after $154; Judges & judicial law clerks: $150; Judges & judicial law clerks admitted after 1/1/03: $140. 1/1/03: $169; Nonmember: $209; Paralegals attending with an attorney: $99; Paralegals attending *(Registrations received more than 2 days before the presentation qualify for the Early Registration Discount.) Reg- alone: $129; Judges & judicial law clerks: $95; Judges & judicial law clerks admitted after 1/1/03: $85. ister with PBI. Register with PBI. PAGE 10 LAWYERSJ OURNAL OCTOBER 12, 2007

mation provided, and to do your best to members have done so many things PRO BONO CENTER continued from cover AGREEMENTS continued from page 3 ensure that family members and citi- and learned so much that the class has cannot help. sions authorize the execution of agree- zens with whom you interact under- exceeded their expectations or precon- “I think it is actually going to be ments that outlast the terms of individ- stand the vital role that independent, ceived ideas,’’ she said. “It gives partic- wonderful for both the Pro Bono Center ual board members. To the extent that experienced, and well-qualified judges ipants insight into the operations of the and for us,” Langton said. “If Neigh- this legislative policy conflicts with the play in our society. ACBA and its entities that they would borhood Legal Services Association common law, the legislative authority It is a fair and impartial judiciary, in not otherwise gain. cannot help them, hopefully, we can fill prevails. The court moved to determine the end, that makes the American sys- “It also provides innumerable the gaps.” whether the program administration tem of democracy the envy of the opportunities to expand their profes- While the CLA’s name suggests a agreements constitute agreements in world. Maintaining that impressive sional and community contacts, religious connection, the group works connection with the Authority’s 1986 system, which has endured for over allows for professional and personal with clients of all faiths, Langton said. and 1997 bond issues for purposes of two centuries, is a job that must begin development and growth, gives them “We service anyone,” she said. “If §5607(d)(12). at home. The ACBA is committed to the ability to share ideas about what they are willing to come into a church The Pennsylvania Supreme Court preserving a strong and independent they think young lawyers need and building, we’ll help them.” determined that the program adminis- judiciary in Allegheny County and provides opportunities to receive The group’s affiliation to Christiani- tration agreements fell under throughout the Commonwealth of information on a firsthand basis about ty stems from a common commitment §5607(d)(12). In explaining, the court Pennsylvania. The board of governors’ all operations of the organization,’’ to faith pledged by all of the CLA’s vol- noted that the statute authorizes con- plan, I believe, will move us closer added Schnippert. unteers, Langton said. People who lend tracts “with others in connection with” toward that laudable goal. ■ Coffey said the BLI experience their time to work in the clinic are from bonds, and not just the bond issues can help young lawyers if they later a variety of faiths, she said. themselves. The court concluded on decide to seek election for a position BLI continued from page 5 For more information about the this issue that the reasonable conclu- in the ACBA because they will have clinic or to volunteer, contact Livia sion is that a contract for the provision year and there are only so many seats more name recognition among Langton at (412) 622-0232, or clapitts- of support for the administration of a at those tables. There are also budget- ACBA members. [email protected]. Volunteers, Lang- bond program is an agreement falling ary reasons since all students who suc- “Bar association participation ton said, are provided with training under the statutory authorization. The cessfully complete the program should be seen as an enhancement and materials and have an opportunity to court found it sufficient that the Legis- requirements receive complimentary not a detriment to the practice of law,’’ shadow another volunteer before work- lature authorized the type of agree- registration and housing at the Bench- said Coffey. ■ ing in the clinic. ■ ments at issue and cautioned that it “is Bar Conference, which costs approxi- not to say that there can never be cir- mately $500 per student. SERVICES continued from page 6 cumstances under which a successor Orientation was held on Aug. 14 and PERSONALITY continued from page 2 board of directors may avoid a contract classes will meet once a month from annual dues paid by members, through June 2008. Coffey said this while most associations rely on performance. But not every situation held over from its predecessor, even year’s class roster includes the follow- between 30 and 40 percent of their rev- includes sufficient testimonial evi- where such a long-term contract is ■ ing students: Jennifer Andrade, Zoe enue from this source. dence. Employers must ensure com- statutorily authorized.” Babe, Lawrence Baumiller, Erin Smith, who served as executive plete and accurate documentation of Farabaugh, Beth Brandsetter Fis- director of the ACBA from 1963 until performance problems in order to sup- PRESIDENT’S MESSAGE continued from page 4 chman, Hope Guy, Elizabeth Hughes, he retired in 2001, passed away in 2006. port its reasons for adverse employ- Kristi Johnson, Matthew Lenahan, He imparted his business philosophy to ment actions in order to preclude a all members of the bar association to Mandi Scott, Daniel Spanovich, Tara Blaner who also believes that creating finding of pretext, and to avoid an ulti- update you on the PAC’s “Vote Yes” Stevens, Nicole Wetherton, Jason business lines that ACBA members mate finding of liability under Title and public education campaigns. This Yarbrough and Julie Yarzebinski. need and are willing to pay for is a VII. ■ is a matter of utmost importance to our Bar Association, and to our democratic Schnippert said the only require- great way to support the structure of Copyright © Dickie, McCamey & Chilcote, system of government. I urge you to ments in order to take part in the BLI the association and to keep dues as low 2007. All rights reserved. carefully weigh and assess the infor- are to be a young lawyer member of the as possible. ACBA and to be able to fulfill the class Blaner said the ACBA has the third requirements. Students are required to lowest dues structure in the United attend a variety of meetings and activi- States at $170 per year, just somewhat ties pertaining to the actual BLI class- more expensive than the $165 es, the YLD Council, at least one YLD charged by bar associations in San Twinkle, Committee, the Stepping Out Program, Diego and Dallas. the Very Important Papers Program, Joining Smith as founding members Twinkle. the mid-year and annual YLD meet- of Services, Inc. were Blaner, Jim ings, the ACBA’s board of governors, Abraham and John Gismondi. Abra- the ACBA Services Inc.’s board of ham and Gismondi served the maxi- THE FORT PITT CAPITAL TOTAL RETURN FUND directors and the Allegheny County mum allowable term of nine years as FIVE-STAR OVERALL MORNINGSTAR RATING™ Bar Foundation. members of the board of directors. In addition, they must take part in Although Paul Beck was not a founding The Fort Pitt Capital Total Return Fund has just received a 5-Star Overall Morningstar RatingTM among 1618 Large Cap Blend Funds for the YLD children’s holiday party and member, he served six years as a direc- the period ending 8/31/07. The Morningstar Overall Rating™ for a fund is derived from a weighted average of the performance participate in the BLI class project. tor and was a valuable contributor to figures associated with its three-, and five-year Morningstar Rating™ metrics, which are based on risk-adjusted return performance. “One of their assignments is to come the board. You should carefully consider the fund’s investment goals, risks, fees and expenses. You’ll find this up with an idea for a public service The ACBA bylaws state that direc- and other important information in the prospectus, which you should read carefully before investing. project to be completed by the class,’’ tors can serve no more than three con- To obtain a prospectus, please call us at said Coffey. “We will meet in October to secutive three-year terms. (866)688-8775 or visit fortpittcapital.com discuss ideas and to take a vote. I want “The reason it was set up that way them to vote on the project and to agree is because it was a new venture and Mutual Fund investing involves risk. Principal loss is possible. on it because when you have ownership we needed longevity with people who in something, you care about it more.’’ would serve for a long time. We knew © 2007 Morningstar, Inc. All Rights Reserved. The information contained herein: (1) is proprietary to Morningstar and/or its content providers; 2) may not be copied or distributed; and (3) is not warranted to be accurate, complete or timely. Neither Morningstar nor its content providers are responsible for any Schnippert said previous students it would take a number of years for us damages or losses arising from any use of this information. Past performance is no guarantee of future results. have provided extremely positive to develop the appropriate business For each fund with at least a three-year history, Morningstar calculates a Morningstar Rating™ based on a Morningstar Risk-Adjusted Return measure that accounts for variation in a fund’s monthly performance (including the effects of sales charges, loads, and redemption fees), placing more emphasis on feedback about their experience in lines and to grow the company,’’ said downward variations and rewarding consistent performance. The top 10% of funds in each category receive 5 stars, the next 22.5% receive 4 stars, the the class. Blaner. “Therefore, we felt that next 35% receive 3 stars, the next 22.5% receive 2 stars and the bottom 10% receive 1 star. (Each share class is counted as a fraction of one fund within this scale and rated separately, which may cause slight variations in the distribution percentages.) As of August 31, 2007, the fund received a 4-star “Even though we give them a pretty longer terms for board members Morningstar RatingTM among 1618 Large Cap Blend Funds for the three-year period. The fund received a 5-star Morningstar RatingTM among 1274 Large comprehensive overview at the orien- would help us grow the company and Cap Blend Funds for the five-year period. Past performance is not guarantee of future results. Quasar Distributors, LLC, Distributor. (08/07) tation, by the end of the year the class provide stability.’’

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Blaner noted that Services, Inc. gen- tions to the legal profession by creat- numerous positions with the ACBA NON-COMPETE continued from page 7 erated approximately $500,000 in ing the John Gismondi Civil Litigation since 1962 when he received his law annual revenue in 2001, but now the Certificate Program. degree from Duquesne University. He employment is enforceable only if the figure is well over $1.1 million. He received his law degree from the served as secretary of the Young employee receives new considera- At the time the ACBA formed its University of Pittsburgh in 1978. Gis- Lawyers Division, a member of the tion. George W. Kistler, Inc. v. for-profit subsidiary, there were mondi and his wife Lisa have three Finance Committee, chairman of the O’Brien, 347 A.2d 311(Pa. 1975). The about eight other bar associations in children, Maria, Tory and Justin. Law Day Committee and chairman of new consideration must provide a the nation that had profit-generating Abraham recalls that Services, the Intellectual Property Section, real benefit, which the employee is divisions in place. However, the other Inc. was formed while he was serv- which he also founded. not otherwise entitled to receive. associations created their sub- ing as treasurer of the ACBA. He Prior to becoming an attorney, Examples of new consideration sidiaries to offer insurance products went on to serve as chairman of the Beck was an electrical engineer and include money, new job responsibili- and services. board during most of his tenure with then served two years in the military. ties and titles, new benefits, or a “Our subsidiary was different the subsidiary. He fondly remembers reading the change in employment status from a- because we kept insurance products “As treasurer of the ACBA, I saw legal publications that a military twill to contract employee status. and services in the association and that we were doing a lot of activities for lawyer received in the mail. In fact, focused our subsidiary on video deposi- members and generating taxable he was still in the military when he Be sure that the non-compete tions and replay when we first started income,’’ said Abraham. “These activi- applied to the Duquesne University agreement contains an the organization,’’ said Blaner. “We ties also put us in competition as a bar School of Law. assignment provision. actually created that industry by con- association with other businesses. If we He worked as a patent attorney and In some jurisdictions, like Pennsyl- ducting the first video deposition in the would have continued to handle these handled cases pertaining to copyright vania, where a company sells its assets United States.’’ activities internally, all of the decisions and trademark litigation. He and his to another company, the purchaser can- Gismondi, a former ACBA presi- would have had to be made by the wife Nancy have eight children, Brad- not enforce the seller’s non-competes dent, said being the first bar associa- board of governors. It made sense to ford Beck, Jennifer Foley, Michael unless the agreement expressly per- tion in the country to offer videotaped move these activities into a subsidiary Beck, Shawn Flaherty, Peter Flaherty, mits the assignment. Hess, 808 A.2d depositions was the catalyst for offer- with its own board of directors so the Brian Flaherty, Gregory Flaherty and 912. Courts in these jurisdictions hold ing other services. ACBA board of governors could handle Maggie Gurtner. that it is not reasonable to allow an “The more that members can get other matters.’’ “The ACBA is a model bar associa- entity that is not an original party to the out of a bar association in general, the Abraham, who started his solo tion; it’s one of the finest in the coun- non-compete agreement to enforce the stronger the organization will be and practice last year, said it was reward- try,’’ said Beck. “It didn’t happen by agreement, unless the employee has the people will feel more of an alle- ing to watch the concept blossom into chance, though. It resulted from the previously agreed to the assignment. giance to the organization,’’ said Gis- a profitable business venture. He dedication of many lawyers and it’s a Including an assignment provision is, mondi. “The success of ACBA Servic- earned his law degree from Duquesne real tribute to Jim Smith. I’m proud to therefore, highly recommended. es is a testament to the strength and University in 1978 and worked for a have been part of it.’’ perseverance of the bar association large public accounting firm and sev- The board of directors announced Be sure the non-compete itself in Allegheny County. Our bar eral Pittsburgh firms before becoming new appointments in July and the agreement contains a association has such a name brand and a sole practitioner. board reorganized at the end of presence that when it creates an off- Abraham’s specialty areas include August. New members of the board tolling provision. shoot, it has an excellent chance of employee benefits, estate planning and now include Hal Coffey, Kelly Jones In certain jurisdictions, like Penn- succeeding.’’ federal income tax matters. He and his and Steve Perry. Officers are Marvin sylvania, the term of the non-compete Gismondi is the owner, founder and wife Francine have two children, Lieber, president; Jennifer Cerce, starts to run on the date of termina- partner of Gismondi & Associates, a Andrew Ferraro and Amy Ferraro. secretary; and Greg Harbaugh, tion, not on the date an injunction is firm he started in 1987 at the age of Beck, who chaired the ACBA Head- treasurer. obtained. Hayes v. Altman, 266 A.2d 34. He focuses on medical malpractice quarters Committee for 16 years, “I’m very interested in all aspects of 269 (Pa. 1970). For example, suppose and personal injury cases. He has decided not to serve another term on the ACBA, especially its future, so I an employee breaches a one-year non- been teaching law classes at the Uni- the Services, Inc. board because he wanted to be part of the for-profit wing compete and an injunction is ulti- versity of Pittsburgh for 24 years. The wanted to make way for someone with and find other avenues we can continue mately obtained after eight months university recognized his contribu- a fresh perspective. He has served in to grow,’’ said Coffey. ■ Continued on page 12 AddingAdding toto thethe We make it our business Pot to cater Pot to your business.

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VISIT THE COMMON PLEA RESTAURANT AND MENTION YOU SAW THIS AD ACBA Legal Placement Service IN THE LAWYERS JOURNAL AND RECEIVE 50% OFF OF YOUR ENTRÉE. A Division of Work Time Options, Inc. 412-261-0744 [email protected] EOE PAGE 12 LAWYERSJ OURNAL OCTOBER 12, 2007

Serv., Inc. v. Richter, 587 A.2d 772 holder actions, and executive compen- NON-COMPETE continued from page 11 (Pa.Super. 1991). sation cases. He is the office managing have expired. Instead of obtaining a In summary, there are many partner of Fox Rothschild’s Pittsburgh full year under the covenant, unless nuances that scriveners should consid- office and he co-chairs the litigation GUIDELINES tolling language is contained in the er when drafting non-compete agree- covenant, your client will only obtain ments. If done properly, non-competes group for the Pittsburgh office. FOR UNSOLICITED four months of protection. In order to are effective tools to preserve your Carl J. Rychcik is a partner and com- avoid this disastrous result, all clients’ most valuable assets. If done mercial litigator with Fox Rothschild’s ARTICLES SUBMITTED FOR covenants under Pennsylvania law improperly, your client will be without Pittsburgh office. He has handled should include a tolling provision, a remedy and you may ultimately lose numerous matters at the trial and PUBLICATION IN THE stating that “the duration of the an important client relationship. ■ covenant shall be extended by the appellate levels, including, trade LAWYERSJOURNAL period equal to the time during which Jay D. Marinstein litigates complex, secret and restrictive covenant claims, the employee is in breach.” In the commercial litigation cases on a securities litigation, shareholder and above example, although the employ- national basis for Fox Rothschild. His stock purchase agreement disputes, Because the editors of the Lawyers ee has violated the covenant for eight work has ranged from trade secret, pharmaceutical and biotechnology liti- Journal (LJ) receive many submissions months, with the appropriate tolling restrictive covenant, and breach of gation, breach of contract claims, for publication we can accept only a provision, the employer will be able to enforce the agreement for a full 12 contract cases to securities cases, employment termination cases, and portion of those sent to us. Most months. See Worldwide Auditing fraud cases, partnership and share- real estate litigation. often, we decline articles because they either discuss topics we have recently covered or serve as promotional material in the guise of an article. When submitting an article for consideration, please keep these guidelines in mind: 1. Authors are strongly encouraged to discuss article ideas with the editor and submit an outline or capsule summary before investing time in writing. The LJ will not agree to run an article until the editors evaluate the full-text article. 2. Every effort will be made to publish an accepted article; however, the LJ reserves the right not to publish an accepted article if the material becomes dated, if there is no space to run the article, or if the editorial board raises HELPING YOU BUILD any other concern. 3. We publish only articles written exclusively for the LJ. We will not consider material that an author A BETTER CASE has sent to other publications. 4. We rely on the author’s integrity in submitting original work. Any material derived from other This is what our Business Valuation and Litigation LITIGATION SUPPORT sources should be clearly identified within the text. Support Services Group is all about. With hundreds of • Commercial and Economic 5. 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