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THE NEWSLETTER OF THE WESTMORELAND BAR ASSOCIATION VOLUME XIV, NUMBER 5 SEPTEMBERÐOCTOBER 2002

A Veterans Day Salute: We Remember and Give Thanks

two months at Officer Training enlisted men. I was awarded the ne year after World War I drew to a close, President School, Fort Schuyler, Bronx, N.Y. Purple Heart. OWoodrow Wilson declared In October 1943, I reported to June to August of 1944 was spent November 11, 1919, as Armistice the Amphibious Training Bases in survivor camps until I was assigned Day—a national holiday to celebrate at Camp Bradford, Norfolk, and to and reported aboard LST 312 in victory in “the war to end all wars.” Solomons, Md., and by December, Manchester, England. LST 312 had Yet the dream of world peace was was recommended to be an Executive been hit by a buzz bomb in London. soon shattered as first World War II, Officer on an LST (Landing Ship I was promoted to Lieutenant in then the Korean Conflict called Tanks). October 1944. On December 12, America’s troops back to the battle- A nucleus crew picked up our 1944, we left Plymouth, England, and field. In 1954, Armistice Day was ship, LST 499, at Evansville, Ind., in crossed the Atlantic renamed “Veterans Day,” as a tribute January of 1944, and we sailed down Ocean in a convoy, to all the men and women who have the Ohio and Mississippi Rivers to arriving in New defended the cause of freedom New Orleans, La. January to March of York City in bitter around the world. 1944 was spent training and outfitting cold weather and a This Veterans Day, the WBA pays the ship in New Orleans, Panama blinding snowstorm tribute to our members who have City, Fla., Brooklyn, N.Y, and Boston, on January 7, 1945. served their country, both in times Mass. On March 14, 1944, we set out During the cross- of peace and of war. We thank them from Halifax, N.S., and crossed the ing, the convoy was for sharing their stories with us, and Atlantic to Firth of Clyde, Scotland, attacked by a for serving the common good. in a 70-ship convoy. German submarine. During Exercise Tiger, a practice DE escort torpe- GEORGE E. BERRY, JR. invasion at Slapton Sands on the doed as it passed ▲ ecember 8, 1941, I turned south coast of England in April 1944, astern LST 312 George E. Berry, Jr. in my books and quit law LST 499, one of 8 LSTs in a convoy dropping depth D school in the second quarter escorted by one escort vessel, was charges 400 miles northeast of the of my second year and enlisted in the attacked by German E-Boats. Three Azores. U.S. Navy as a Yeoman 3rd Class. LSTs were torpedoed, and two sank, In April 1945, I was assigned to I was assigned to the Personnel with a loss of over 800 Navy and LST 309 and sailed from Mobile, Office of the Office of Naval Army personnel, and equipment. Ala., through the Panama Canal. We Intelligence, in Washington, D.C., LST 499 arrived at Utah Beach spent a month in Hawaii for ship from February to August of 1942, and D-Day morning, June 6, 1944. We repairs, and arrived in the Philippines then the U.S. Maritime Training spent two days unloading, and on Islands on August 13, 1945, two days Station, in Sheepshead Bay, N.Y., June 8, while on our way to a staging before the war ended. from September 1942 to July 1943, area to return to England, LST 499 From September 29, 1945, to where I was promoted to Lieutenant hit an acoustic mine, and sank, with October 19, 1945, I crossed the (junior grade). I then spent the next the loss of one officer and twelve continued on page 4

IN Jury Spotlight To-Wit: Actions THIS President’s Trial on James by S. Practice of the ISSUE 2 Message 8 Verdicts 9 Irwin 11 Sponte 13 Tips 17 Board 2 ¥ sidebar SEPTEMBERÐOCTOBER 2002

President’s Message Mea Culpa, Mea Culpa, Mea Maxima Culpa by Timothy J. Geary, Esq.

attended the Planning you are aware that my goal for this You are probably saying to yourself, Committee Retreat in late year is make all of us think about how “Well, this is all fine, but sometimes I I September at Dick Galloway’s we appear to our clients and to the have to make referrals in a hurry. This digs at Kent Island, Md. Dick is public generally. My general message profession of ours involves adversity always a gracious host and part of should be clear to those of you who and bad things happen to our clients the off-time at the retreat involves have not spent your formative years in when we delay.” Fortunately, I have an an outing on Dick’s a broom closet. answer to that problem. The Board of sailboat. I have always The question is, “Why do members Directors is fine-tuning our Website enjoyed sailing and of our Association refer cases to to include a lawyer-to-lawyer section Dick usually humors out-of-county firms?” Oh sure, I similar to the business-to-business me by allowing me realize that some of you have friends yellow pages so that each of us can to take the helm. that go back a long way but I am not list those areas of law which we do best Imagine my chagrin talking about that kind of relationship. and would welcome referrals. when, although we I am thinking about the purely The Westmoreland Bar Association were in the marked economic ones. Shucks, I have has almost 475 members so it would channel, the depth done it myself on be impossible for me ▲ gauge suddenly went occasion, hence to list individual Cap’n Tim from 11.2 feet to my “mea culpa.” member lawyers and isn’t happy 4.2 feet. This was not Surely you didn’t their special areas of about running good on a sailboat think the mea practice here. aground. with a 5-foot keel. culpa had anything However, having said We were aground! to do with my that, and especially in This was embarrassing enough but sailing? After all light of the content of when the towboat finally arrived, I was in the Air this article, I would be piloted by Dick’s brother, Bob, my Force, not the remiss if I failed to chagrin shifted to a deep depression Navy. mention that my dear when I saw his passenger was ... Dan In any case, friend, Dan Joseph, is Joseph, he of Deep Creek infamy! when we refer out an excellent medical My first thought was “Why me?” of county, are we ▲ malpractice attorney My second thought was “Where can I not cutting our Cap’n Dan to the rescue. who would welcome hide?” However it was too late! I had own collective your referrals. seen gloating before but until then I throats? This is our Bar Association, Charity begins at home! had never actually heard it. It is, for after all. Even if I can’t or don’t want the uninformed, sort of a diabolical to handle a particular type of case, I chortle. shouldn’t spite my neighbor and send By now I suppose that most of you it away from our Association. If I do, realize that the message this time is what does this say about my perception about confession. I admit that my of my neighbor or his or her abilities? ship captaincy was short-lived and We pay a lot of money every year in obviously nothing to write home dues to our Association and if we are about but how, you ask, does that concerned about its image and the have anything to do with our image as collective image of its members we lawyers? I hope that by now most of should keep our referrals at home.

Question? Comment? Contact Tim at: [email protected] SEPTEMBERÐOCTOBER 2002 sidebar ¥ 3 Law Library Notes by Betty Ward, Law Librarian legal periodicals; and Hein On Line, SESSION full text access to original articles from LAWS WESTLAW a collection of the earliest legal The The Law Library is proud to periodicals and other legal Pennsylvania announce that the Westlaw National classics. Legislative Gold package will be available for Reference public use (free of charge) on Law NEW Bureau Library computers. This is their COMPUTERS recently largest package including cases and Two new announced plans statutes from all 50 states and all computers have to digitize our federal courts, law reviews, jury recently been State Session Laws. verdicts, analytical materials and added to the This project will so much more. Look for more Law Library’s include The Statutes at information at the Circulation Desk. Computer Large of Pa. (1682-1817); Center. Three computers are Smith’s Laws (1700-1829); and the JENKINS MEMBERSHIP now available for accessing legal Laws of Pennsylvania (1700-Present). The Law Library has an “association” information from the Internet and The first installment is expected to be membership with Jenkins Law Library another for accessing CD-ROM available online this summer. in Philadelphia. This allows our information. users access to electronic information THANKS available to Jenkins Law Library LOCAL ORDINANCES Thank you to Diane Mitinger for members, such as: the Pennsylvania Greensburg, Murrysville and donating law books and two “Legislative History” database; Rostraver Township ordinances are Westmoreland Bar Association LegalTrac, an index to 900 legal available online at: www.generalcode. photos (1971 and 1985) to the Law publications; Wilson Index to Legal com/webcode2.html#penn Library. The items were donated in Periodicals, an index to more than 615 memory of her late husband, Joseph Mitinger.

TEOMA Lawyers Abstract Company A new website to try—TEOMA (www.teoma.com). If you like using of Westmoreland County Google, you’ll like this one—cuts through all the clutter. James C. Ripple Ð Manager REMINDER 129 NORTH PENNSYLVANIA AVENUE The Law Library is open to the GREENSBURG, PA 15601 public until 7:30 on Wednesday evenings. This is a great time for Telephone 724 - 834-2822 students, paralegals and attorneys to use the full resources of the Law Agents for Commonwealth Land Title Insurance Company Library, including books from the reference room and our computer FULL TITLE SEARCHES resources. TITLE INSURANCE For further information, please ABSTRACTS contact the Law Librarian, Betty REAL ESTATE & MORTGAGE CLOSINGS Ward, at (724) 830-3267 or e-mail: [email protected]. the the sidebar is published as a service to Bar Association members by the Westmoreland Bar Association, sidebar 129 North Pennsylvania Avenue, Greensburg, PA 15601-2311, 724-834-6730, Fax 724-834-6855 David J. Millstein, Editor Susan C. Zellner, Associate Editor Diane Krivoniak, Managing Editor Barbara J. Artuso, Practice Tips Editor 4 ¥ sidebar SEPTEMBERÐOCTOBER 2002

ALAN K. BERK Veterans Day Salute continued from page 1 Served as a Lieutenant in the U.S. Air Force from 1956Ð1957 Pacific Ocean from San Pedro Bay to Having been married and with THE HON. ALFRED B. BELL San Francisco by Navy transport and children in the interim, I came back Specialist 5, U.S. Army (Reserves), returned to Greensburg by train. On to Greensburg and practiced there 1969-1975 November 30, 1945, I was released to until my retirement. LEO J. CIARAMITARO inactive duty. As far as the military is concerned, I am a Captain in the U.S. Army. the award I value most is the Combat My Pennsylvania Army National DAVID W. COOK Infantry Badge, along with the Silver Guard unit, 1st Battalion, 103d graduated from Greensburg High Star, Bronze Star, Purple Heart and Armor Regiment was mobilized in support of Operation Enduring School in 1937, worked a year campaign ribbons. Freedom. I am currently serving as I and then had a year at Saint The military taught me to the Officer in Charge of the Force Vincent College. In 1939 I had joined approach any problem objectively and Protection Compliance Team of Company I of the 110th Infantry of see it through. Task Force Keystone. Task Force the 28th Division Pennsylvania Keystone is the Headquarters for National Guard. In February of 1941, ANTHONY W. DeBERNARDO, JR. the entire force that was mobilized ten months before Pearl Harbor, the was drafted into the United from Pennsylvania Army National Guard units to support the opera- Division was Federalized. I then States Army in 1965 at age 20, tion here in the Central European attended OCS at Ft. Benning, Ga., I during the height of the Vietnam region. was commissioned as Second buildup. At the completion of basic Lieutenant and together with my training, I was chosen the outstanding RICHARD F. FLICKINGER I served in the U.S. Army for two brother, Joe, we were assigned to the recruit. As a result, I was admitted years as a 1st Lieutenant with the Cadre of the 10th into Infantry Officer 199th Infantry Brigade (Separate) Armored Division. We Candidate School at (Light). One of my extra duties was served with that Fort Benning, Ga., and that of Brigade Legal Officer. My Division in Europe commissioned a Second regular assignment was that of until I was wounded Lieutenant in the United Brigade Ammunition Officer (one when we were taking States Army Infantry in of two in the entire U.S. Army, but Trier in Germany. I January of 1967. that isn’t nearly as impressive as it may seem). I also served as a went through the usual I then served a year as Captain with the 1st Logistical evacuation and after a the public information Command for the last half of my short stay in England, officer of the Third year in South Vietnam. If I had it to was moved back to the Infantry (the Old Guard) do over, I would do it exactly as I States. I was in Army ▲ at Fort Myer, Va. The did the first time. hospitals for the next Anthony W. DeBernardo, Jr. Old Guard is the Army’s ROBERT WM. GARLAND two and a half years ceremonial unit in I served in the U.S. Air Force from and was retired for physical disability Washington, D.C., whose responsibili- June 26, 1942, until October 27, as a Captain. My brother, Joe, was ties include guarding the tomb of the 1945, during World War II as a killed in action about a month and a Unknown Soldier. My duties included Combat Navigator with the rank of half after I was wounded. briefing and escorting members of the First Lieutenant and was awarded the Air Medal with four Oak-Leaf Between operations, I had much media, dignitaries and Medal of Clusters, the Presidential Unit time for reading and realized I wanted Honor recipients in conjunction with Citation, and the European-African further education. Upon discharge I various ceremonies at the White Service Ribbon with seven attended the University of Pittsburgh House and Arlington Cemetery. From campaign Battle Stars. for the next one and a half years there I was accepted into Army Ranger I also served in the Air Force taking a double schedule and summer School and was awarded the Army Reserve from September 26, school so that I completed my second Ranger Beret with Tab. I was then 1945, until January 11, 1956. and third years of college. I was assigned to Vietnam, serving as an MICHAEL KOLODZIEJCZAK admitted to Pitt Law School based infantry platoon leader with the 25th Major, U.S. Marine Corps, Active upon that education, my Army Infantry Division engaging in numer- and Reserves, 1980Ð1992 experience, and courses taken in the ous search and destroy operations and PAUL KUNTZ Army. Again, I attended regular night ambushes. In Vietnam, I was Lieutenant, U.S. Navy, 1968Ð1979 session and summer school and promoted to First Lieutenant and graduated in two and a half years. given command of a combat infantry SEPTEMBERÐOCTOBER 2002 sidebar ¥ 5

company that operated in the vicinity Homecoming Queen of Bowling of the Cambodian border. I served in Green University—a most impressive that capacity until receiving a gunshot young lady. wound of the left tibia. Among my My most frightening experience awards and decorations, I am most was on September 26, 1956, the date proud of the Combat Infantryman’s I was ordered to report to a numbered Badge and achieving Army Ranger building at Fort Dix, N.J., for status. separation. When I located the build- During law school (1971–1974), I ing, I was apprehensive because the served with the National Guard as a sign on the building said “Overseas Captain and commanding officer of a Replacement Depot.” I entered and Combat Support Company along asked the clerk if this was where I was Donahue Road in Greensburg. supposed to report. He said that my TIMOTHY J. GEARY After graduating law school and name was on his list and that I would I was on active duty in the U.S. Air passing the Bar, I was accepted into the be on the boat to Germany in no Force from September 1963 Army Judge Advocate General’s Corps more than five days. I advised him through September 1970. I left and assigned back to the 25th Infantry that I intended to take my business active duty as a Captain and Division which was now in Schofield elsewhere. On driving in Fort Dix I immediately joined the Air Force Barracks, Hawaii. I served as a Captain had seen a large building designated Reserves and remained in the reserves until 1987, when I retired initially acting as defense counsel, par- “Separation Center.” I asked the clerk as a Lieutenant Colonel. The ticipating in numerous courts-martial, there whether this was the place I was above photo shows me during being later assigned as an Army supposed to be. He replied, “Do you flight training in a T-29 navigation prosecutor and the 25th Infantry want to get out of the Army?” He said trainer. I was flying somewhere Division’s Chief of Military Justice. he really didn't know the process, but over west Texas on a day celestial Did my army service, in general, that if I signed the roster on the desk I mission during the summer of and combat experiences in particular would be separated in three days. He 1964. make me a better lawyer? Hell, I don’t also directed me to a barracks where I DAVID GOLD know! But it sure has given me a would find a bed, and said I should I was an ROTC cadet and commis- better perspective on what is don my Army uniform. sioned Second Lieutenant 1957 at important in life and what isn’t. Instead, I drove to Princeton, Penn. I served in the U.S. Army Reserves for seven years, attend- stayed two days with friends there, ing weekly meetings, and six LOUIS EMANUEL and returned on the third day to find months active duty. I became a n September 28, 1954, I that the clerk who didn’t understand Captain in the Judge Advocate was drafted into the U.S. the process had been correct and that General Corps after becoming a Army and sent for basic the only remaining requirement was lawyer in 1962. I resigned my O commission in 1965. training to Fort Jackson, S.C. I don’t to sign several dozen documents— recommend either the location or which certainly seemed a reasonable THE HON. JOSEPH A. HUDOCK the experience. After two months I accommodation. Lt. Commander, U.S. Navy Judge fortunately was sent to Fort Holabird, Advocate General Corps. (Looked Md. (which no longer exists), to RICHARD L. JIM better in that stunning white uniform attend the Counter-Intelligence Corps fter I graduated from the than any of those young pup actors school. Upon completing this I ended University of Pittsburgh in in that “JAG” show on TV.) up in civilian clothes, living wherever I 1950 there was no work to be DAN JOSEPH A SP4, U.S. Army, Honorable Discharge desired and working out of the office found. Everyone was 1-A. I was sched- of the 109th CIC Det. in downtown uled to be drafted. I worked at the local 1974 Akron, Ohio. My job was running steel mill for seven months in the open JOHN M. LEONARD investigations (the majority were hearth department. It was the only job Served in Vietnam as a Field security clearance checks) in Stark, to be had. Then, I signed up for the Medical Specialist, Petty Officer Carroll and Tuscarawas Counties. U.S. Army Air Force. Also, I applied 3rd, with the Ninth Marine My designation was “Special Agent.” for Officer Candidate School in the Amphibious Brigade, from 1966 to 1967. Commendations awarded This was interesting, enjoyable U.S. Navy. The Navy accepted me and include Vietnam Service Medal work. The experience in conducting on May 5, 1951, I boarded a train at with Fleet Marine Combat Insignia, interviews and making factual the Latrobe Station. My mother and National Defense Service Medal, investigations was invaluable. I father kissed me goodbye and I headed and Vietnam Campaign Medal. particularly recall interviewing the continued on page 6 6 ¥ sidebar SEPTEMBERÐOCTOBER 2002

GEORGE H. LOVE, JR. Veterans Day Salute continued from page 5 Lance Corporal, U.S. Marine Corps, March 1967ÐNovember 1968. Vietnam Service, October for Pittsburgh on the train. In found a private tennis court, and a 1967ÐNovember 1968. Third Pittsburgh I was sworn in as a seaman couple of guys who were there asked Battalion, First Marines, First recruit and my Navy duty began. me if I could play doubles with them. Marine Division (Thundering Third); I was in the first class at Officer I was later told they were the Special Landing Force (SLF Candidate School in Newport, R.I., as Kennedys. Bravo), Battalion Landing Team a seaman. Six months later I went out The service was good to me. (December 1967ÐJune 1968); the gate an ensign and the Marine Combatant in Battle of Thon Tham MARGARET PICKING Khe against 116th NVA Battalion saluted me. While at OCS I received (Grunt); Squad Leader TET of 1968 orders from the Air Force to report to n the fall of 1977, an Army against 803rd NVA Regiment (106 Texas for pilot training. The Air Force recruiter came to my law school recoilless rifle); Participated in five was too late. Icampus in Northwest Ohio to campaigns and ten combat opera- As I was a graduate engineer from recruit law school seniors like me for a tions (Fortress Ridge, Badger the University of career in the U.S. Tooth, Badger Catch, Saline, Pittsburgh, the Navy Army Judge Advocate Napoleon/Saline, Lancaster II, assigned me to the General’s Corps Charlton, Swift Saber, Mameluke Thrust and Dodge Valley); as well Philadelphia (JAGC). I didn’t as combat operations against Shipyard. The Navy come from a military insurgent communist forces in Commander who was background, though RVN, a/k/a, Viet Cong. my superior was Tom my father had been Awards include Combat Action Lamonica, who said drafted during the Ribbon, Presidential Unit Citation his son, Darryl, was Korean conflict. with one Bronze Star, Navy Unit doing good in foot- Nevertheless, I Commendation, National Defense Service Medal, Vietnam Service ball. Darryl Lamonica was excited by Medal with one Silver Star, was the quarterback the prospect of Republic of Vietnam Meritorious at Notre Dame and independently Unit Citation (Gallantry Cross later the Oakland handling my own ▲ Color), Republic of Vietnam Raiders. caseload and getting Meritorious Unit Citation (Civil I was just learning Margaret Picking into a courtroom Actions Color, 1st Class), Republic how to take a ship out of dry dock right away, as the recruiter promised, of Vietnam Campaign Medal, and Rifle Sharpshooter Badge. when I was transferred to the Bureau by becoming an officer in the JAGC. Also served as Lieutenant in the of Ships in Washington, D.C., at Much to the surprise of my U.S. Navy from December 1976 to Main Navy on Constitution Avenue. family and friends, I applied, and was November 1984 in the Judge My good friend, Ralph Costello awarded a direct commission to the Advocate General’s Corps. from Pleasant Unity, and I were U.S. Army by then-President Jimmy RABE F. MARSH III having lunch in Georgetown in D.C. Carter upon completion of law school. Lieutenant, U.S. Navy, 1962Ð1968. the May prior to my discharge. He I entered the Army in January 1979 Served with U.S. Naval Station, told me his brother, Pat, was getting as a Captain, attended basic training at Pensacola, Florida; Staff, Commander, recognized as the attorney for a man Fort Lee, Va. (a more abbreviated and U.S. Sixth Fleet; Admiralty Division called the Turnpike Killer. That lunch less arduous course than the standard of Navy Judge Advocate General, was the start of my career as an recruit), and finally, ten weeks of train- Washington, D.C. attorney. After that lunch I sent for ing in military law in Charlottesville, JOHN A. MIKA the law school admissions test. Va. I then received my assignment— SP4 Finance Corps of U.S. Army, I took the test while in the Navy. It I would spend the next three years 1962Ð1964.The GI Bill enabled me was all about words and mathematics at Fort McNair in Washington, D.C., to go to law school on a full-time so I scored high. The Navy G.I. Bill a beautiful and historic post. Fort basis. gave me three free years at law school McNair is part of the Military District KENNETH L. MURRAY and $135/month for expenses. I was of Washington (MDW), which Captain, U.S. Army, 1964Ð1968, discharged on September 5, 1954, and includes Fort Myer, site of Arlington Vietnam started law school the next day. National Cemetery, and Walter Reed, DONALD J. SNYDER, JR. In the summer of 1956 while on as well as other posts, and I came to be Captain, U.S. Army Navy Reserve training duty I was responsible for all of it as Chief Trial stationed near Hyannis Port, Mass. I Counsel for MDW. SEPTEMBERÐOCTOBER 2002 sidebar ¥ 7

Ironically, I started out as a defense make a career of it, but have never attorney for the Army. In those days regretted my decision to enter. I of yesteryear, the Commanding learned to be a trial lawyer, sometimes General (CG) decided which attor- the hard way, travelled extensively, and neys assigned to his command would made lasting friendships. It was the be defense counsel and which would first real job I ever had as a lawyer and be prosecutors (called trial counsel in it strengthened me in body, mind, and the military). The CG invariably character. My experience has left me assigned the newest and greenest with the fervent belief that every attorneys to be defense counsel and American man and woman should be made only the seasoned veterans trial required to serve at least one year in counsel. This is no longer the case the military, not on the front lines, today. Defense attorneys now have an but in some small way. ROBERT J. MILIE independent chain of command and I served in a peacetime Army. I U.S. Army. Served in Korea as part are very experienced and capable. am not a combat veteran. The only of the Adjutant General. The photo above shows Bob Milie, on the In any event, I can assure you I combat I ever saw was in a court- right, upon his graduation from didn’t often win my cases as defense room. I am nevertheless very proud of Saint Vincent College. counsel, but I apparently created such a my military service. As we prepare to stir in the command with my subpoe- honor America’s veterans on Veterans RON RUSSELL Served 1974Ð1985 as a naval nas and my examination of witnesses Day, and to remember those men and reserve officer, active duty that the CG made me a prosecutor. women who gave their lives in service November 1974 to February 1979; The rest, as they say, is history. to our nation, we should all pause to last rank Lt., highest position I eventually became Chief Trial reflect on the many sacrifices made by Acting Captain of USS Enhance. Counsel for MDW and tried all combat veterans—with thanks and Served on USS Enhance, USS manner of cases, from murder to with awe. McDonough and several reserve failure to obey a lawful order. units. Commissioned through OCS It wasn’t always easy—“lifers,” as BILL WILTMAN Newport, R.I. Stationed in San we called them, career Army types, was in the U.S. Army from Diego, Calif., and Charleston, S.C. didn’t readily accept a woman as Chief December 1969 through Deployed to North Atlantic Fall 1976 Trial Counsel, giving direction to male I December 1972. Since this was to Winter 1977; Mediterranean company commanders and MPs. I prior to my going to law school, and Summer 1978 to Winter 1979; had to prove myself, but that would as I had not taken ROTC in college, training duty for U.S. Naval have been true anywhere. I was just a regular enlistee, with the Academy Summer 1977; Caribbean I left the Army after three years and rank of Spec-5 at time of discharge Deployment Fall 1977. Served as Operation Dept. returned to civilian life, accepting a (honorable). I was in a branch Head, Executive Officer and job offer in the Westmoreland County known as the Army Security Agency, Acting CO USS Enhance; DA’s Office from then-DA John spending the entire year of 1972 in Assistant Engineering Officer USS Driscoll. I was interviewed for the Southeast Asia, near the Mekong McDonough; Top Secret Control job by First Assistant Bob Johnston, River where it serves as a border Officer; Crypto Officer; Legal who still tells me today he didn’t between Laos and Thailand. One way Officer; Welfare and Rec Officer; know quite what to expect when it impacted my career is that, having Codes team member. interviewing a female Army officer. gone to law school after the service, JAMES R. SILVIS I will never forget my three years in all of my law school expenses were Lieutenant, U.S. Navy JAG Corps, the Army. I had never intended to covered through the GI Bill. 1965Ð1968 GEORGE V.WELTY I served as a First Lieutenant in the Operation Enduring Light United States Army from June Looking to volunteer your legal expertise to a worthy cause? The 14th 1969 through June 1971 with a Quartermaster Detachment is preparing for possible mobilization and is one-year tour of duty in Vietnam in need of volunteer attorneys to assist in preparing wills and power of from June of 1970 through June of attorneys as well as advising on other legal rights and responsibilities 1971. these reservists may face as active duty soldiers. Attorneys are needed I consider my two years in the on Sunday, November 24 and Monday, November 25 for two- to three-hour Army an invaluable experience shifts. Contact the WBA to volunteer. Additional info can be found online that has positively impacted my life at http://www.abanet.org/poladv/letter/01dec.html#7. and career. 8 ¥ sidebar SEPTEMBERÐOCTOBER 2002

July 2002 Trial Term Jury Trial Verdicts by Rachel Yantos, Esq.

f 72 cases scheduled for the assigned as plaintiff’s treating Plaintiff’s Counsel: Edward G. July 2002 civil trial term, physician in the hospital when Shoemaker, Shoemaker & Associates, O17 settled, one was stricken, plaintiff presented with high blood Pgh. one was discontinued, 34 were pressure and left arm pain. Upon Defendant’s Counsel: Alan S. Baum, continued, one was transferred to defendant’s recommendation, plaintiff Gaca Matis Baum & Rizza, Pgh. arbitration, one was stayed pending underwent a cardiac catheterization Trial Judge: The Hon. Gary P. bankruptcy, one was on appeal to the test. Tests following the procedure Caruso Superior Court of Pennsylvania, one revealed that defendant had dissected Result: Verdict for defendant. was a nonjury trial, verdicts were the right coronary artery with entered in six, and nine were held the catheter device. Plaintiff was MARJORIE L. MARLING to the next term. The three cases immediately transported to Mercy AND RAYMOND E. MARLING, resulting in jury verdicts are Hospital, where she successfully HER HUSBAND described below. underwent open heart surgery. V. Plaintiff contended that defendant EAT ’N PARK RESTAURANT LINDA GAUDIELLO, was negligent in dissecting the TRUST AND CINTAS AN INDIVIDUAL artery, as well as ordering the cardiac CORPORATION AND CINTAS V. catheterization test when she was not SALES CORPORATION D/B/A ALAN E. OLIVENSTEIN, M.D. suffering from coronary artery disease CINTAS CORPORATION NO. 7317 OF 2000 or blockage. NO. 780 OF 2000 The defendant maintained that Cause of Action: Professional the cardiac catheterization was Cause of Action: Negligence— Negligence—Medical Malpractice recommended as a result of plaintiff’s Premises Liability Plaintiff brought this medical symptoms and findings. Defendant On October 23, 1998, plaintiff malpractice action against the denied that he acted improperly in was a business invitee of Eat ’n defendant for health care rendered performing the surgical procedure Park Restaurant in New Stanton. from July 9, 1993, through August during which plaintiff developed the As plaintiff entered through the front 20, 1993. Initially, defendant was complication. entrance, she tripped and fell on a turned up edge of the floor mat/ runner, which was allegedly improperly installed by defendant DISPUTE RESOLUTION Cintas Sales Corporation, d/b/a UIM/UM ARBITRATION Cintas Corporation. Plaintiff was transported to the emergency room, MEDIATION treated and released for orthopedic SETTLEMENT CONFERENCES care. Plaintiff’s injuries included a EVIDENTIARY HEARINGS severe fracture of the left humerus and BINDING/NON-BINDING injuries to the nervous system. Her COST-EFFECTIVE husband claimed loss of consortium. CONFIDENTIALITY Defendant Cintas denied negligent installation of the floor NEUTRAL THIRD-PARTY INPUT mat. Defendant asserted that SWIFT RESOLUTION plaintiffs’ damages were caused by DIRECT PARTY PARTICIPATION JOHNM.NOBLE,ESQ. an intervening and/or superseding GREENSBURG, PA FLEXIBILITY cause over which it had no control. (724) 853-2296 Defendants brought cross-claims FAX: (724) 836-0532 [email protected] against each other for contribution MEYER•DARRAGH•BUCKLER•BEBENEK &ECK and/or indemnity by way of new ATTORNEYS AT LAW GREENSBURG OFFICE: 114 SOUTH MAIN STREET, GREENSBURG, PA 15601 continued on page 19 SEPTEMBERÐOCTOBER 2002 sidebar ¥ 9 Spotlight on James Irwin

Q school or when I was admitted to the Q WHAT JOBS HAVE YOU Bar and the United States Supreme WHAT HELD PRIOR TO BECOMING ADVICE AN ATTORNEY? Court. (2) Not being able to go to WOULD YOU A China for ten weeks after being GIVE TO Chemist, salesman, service station invited by my cousin, James Irwin, ATTORNEYS attendant, construction laborer, patent the astronaut, who went to the Moon NEW TO THE attorney, tech service, farming, pin on Apollo 15. PRACTICE spotter, grass cutter OF LAW? Q A Q WHO ARE YOUR HEROES IN As Judge James Flaherty told me WHICH WAS YOUR FAVORITE REAL LIFE? when I wanted to become an attorney, AND WHY? A “If you want ulcers and insomnia, A Leonardo da Vinci, Abraham Farming—immediate reward; Lincoln, Winston Churchill and you’ve selected the right profession— nice to see a plowed field when you Robert E. Lee. but I will do what I can to help you.” are finished. continued on page 12

Q WHAT WAS ONE FUNNY THING THAT HAPPENED TO YOU AS AN ATTORNEY? AlterEgo: James Irwin A In the Westmoreland County AlterEgo: James Irwin Courthouse, I pointed out to one of my clients who was a defendant in a or amateur book collector football with the likes of Mike criminal matter, that the gentleman James Irwin, his life has been Ditka and Marty Schottenheimer. who just walked by was Irving Green, Fa story with many chapters. Although the Cowboys, Vikings one of the best criminal lawyers in Born in County Tyrone, Ireland, and Giants expressed interest, Jim Westmoreland County; and my client into a family of 12 children, his chose a career at PPG over the lure looked at me and said—“I thought first home was made of clay with a of pro football. While at PPG, he you were Irving Green!” stone floor, an open hearth and no patented several electrophoretic running water. coating compositions, and was able Q WHAT IS THE QUALITY YOU When Jim was 13, his uncle and to earn enough money to bring MOST LIKE IN AN ATTORNEY? namesake asked if Jim would like two of his sisters over from Ireland. A to come live with him and his wife It was peer pressure that made A sense of humor and the spirit in America. Jim jumped at the him seek a law degree. At a college of compromise. opportunity and boarded the reunion, he discovered that most of RMS Mauretania for his new life. his teammates had M.D.s, M.B.A.s, Q WHAT IS YOUR FAVORITE JOURNEY? It would be 10 years before he saw Ph.D.s, and other degrees. Jim his family or his homeland again. decided to attend law school and, A When I return to my cottage in He stayed with his uncle, who therefore, become a U.S. citizen. County Tyrone, Ireland, to be with lived in Butler, and worked on At that time, you couldn’t attend my relatives and my friends, my a neighbor’s dairy farm. At 16, law school if you weren’t a citizen. ancestors (spiritually)—good books, he hopped on a bus headed to His attorney’s license and U.S. green fields, fresh air, evening tide and Pittsburgh with $2 in his pocket citizenship are now his most prized a small glass of Bushmills. and nowhere to spend the night. possessions. Q Jim found a distant relative in For the man who started his WHAT IS YOUR Squirrel Hill and settled in, collection when he bought back GREATEST attending high school at Taylor all of his college textbooks after REGRET? Allderdice, where he excelled at graduating, his goal in life is to live A (1) Not football, and was named All City. to be an old man and actually read being able to Forty-two scholarship offers all those books he has gathered have my parents came his way, including a partial over the years. No doubt he’ll write present when I scholarship to Harvard. Jim many more chapters in the story of graduated from high attended Pitt, where he played his life along the way. school, college, law 10 ¥ sidebar SEPTEMBERÐOCTOBER 2002 bookmark What Have You Been Reading? by Jeff Pavetti, Esq. how the human spirit can respond observations of daily life in the to tragedy in the most uplifting Confederate States during the Civil War. ost lawyers enjoy reading. fashion. Also stands for the important A SAND COUNTY ALMANAC ◆ by It is probably part of the proposition that we cannot assume Aldo Leopold ◆ Leopold’s observations mental hard wiring that has that people in a responsible position M on land, life and nature (particularly oriented us toward our profession. will always act responsibly. his seasonal journals) are as crisp and Some of my favorite “all-time” USA (THE TRILOGY) ◆ by John clear as an autumn afternoon. I’ve authors include John LeCarre (spy Dos Passos ◆ Dos Passos’ Trilogy read this book several times—and thriller novels), (consisting of “The 42nd Parallel,” found a new perspective upon each Raymond Chandler “Nineteen” and “The Big Money”) reading. (detective novels), is a semi-fictional account of a Ernest Hemingway SPOON RIVER ANTHOLOGY ◆ fascinating period of American history, (life as fiction), by Edgar Lee Masters ◆ Fictional from 1900 to 1920. Trustbusters, K.C. Constantine epitaphs in prose, scripted by the meat packers, immigrant workers, (semi-fiction in occupants of graves in a small town doughboys, socialites, socialists, “reds,” Greensburg), Mark cemetery. Insightful perspectives on and industrialists cross paths in a most Twain (especially mortality and our life’s purpose. unexpected fashion. “Tom Sawyer” and EXPLORATION OF THE COLORADO ▲ “Roughing It”), and SAVE OUR LAND, SAVE OUR RIVER AND ITS CANYONS ◆ by A.C. Doyle’s tales of TOWNS ◆ by Thomas Hylton Jeff Pavetti John Wesley Powell ◆ The story of an Sherlock Holmes. I’ve (Photography by Blair Seitz) ◆ Hylton amazing exploration by a remarkable read many of the aggregate works of persuasively argues that the traditional American. Powell was a naturalist, these authors. I’ll liken the enjoyment separation of town and country has explorer and one-armed Civil War of these authors to a cold beer on a been bastardized by suburban sprawl. Major (he lost an arm in the Battle of hot afternoon—refreshing but not He advocates a return to defined Shiloh) who was the first non-Native always nutritious. and compact communities in this American to explore the length of On the other hand, a salami thought-provoking book that is the Colorado River. This is the sandwich goes well with a cold accompanied by superb photography compelling journal that he maintained beer. The “Book List” criteria, as I of our Pennsylvania landscape. I during that expedition. understand it, is to list those books think about Hylton’s theme anytime that have been thought provoking I am traveling on Route 30 in A GUIDEBOOK TO HISTORIC and whose topic matter has provided Westmoreland County. WESTERN PENNSYLVANIA ◆ by sustenance, and even the smell and Helene Smith and George Swetnam ◆ THE DANGEROUS SUMMER ◆ by taste of the meal long after it has been Regional history and vintage architec- Ernest Hemingway ◆ Papa and his consumed. For better or worse, here is ture intrigue me. The late Judge entourage follow a season of bull my offering of salami: Bernard Scherer first introduced me fighting. Celebration, pathos, life, to this comprehensive guidebook, danger and death combine in the DESERT SOLITAIRE ◆ by Edward which has been a frequently consulted dusty Spanish countryside. Abbey ◆ Abbey’s journal of his season traveling resource. Smith, who has as a Park Ranger at Arches National ABRAHAM LINCOLN ◆ by Carl written on many diverse topics, may Park, Utah. A wide ranging (and at Sandburg ◆ In my book, Abraham be the most prolific author who has times raging) account of nature, time Lincoln was the most indispensable ever called Westmoreland County home. American President. Admittedly, and life in the American Southwest. It FREE WHEELING EASY IN AND Sandburg places his beloved Lincoln helps to have spent some time in Red AROUND WESTERN PENNSYLVANIA on a pedestal—but that’s fine with Rock country. ◆ by Mary Shaw and Roy Weil ◆ me—this work remains a continuing THE JOHNSTOWN FLOOD ◆ by Biking is a leisure activity that Dianne favorite of mine. David McCullough ◆ McCullough and I enjoy. This guidebook has been has addressed topics as diverse as the MARY CHESTNUT’S CIVIL WAR helpful in planning many enjoyable Brooklyn Bridge, Teddy Roosevelt, DIARY ◆ Mary Chestnut may be the excursions. Mary and Roy are the Harry Truman and John Adams. This most insightful diarist that ever lived. definitive source of information on book (his first) graphically describes This is a collection of her trenchant Tri State trails. SEPTEMBERÐOCTOBER 2002 sidebar ¥ 11 To-Wit: At The Movies by S. Sponte, Esq. spend too much time on the cutting Lawyer Finch edge of life to stop and smell every (Finch – ou know, I’ve pretty much had time a rosebud passes by. But that’s Mockingbird ... it with those pundits who posit not to say we aren’t interested in some get it? If so, Ythat, as a profession, we lawyers of the more plebeian forms of popular explain it to me, are a cultureless lot. As far as I’m culture such as movies and, uh, well, I don’t get it) concerned, nothing could be further okay, maybe just movies. But movies comes to learn from the truth. are certainly mainstream culture, and that it’s a sin to Okay, maybe we aren’t as up on our I have loved them all my life. Being a bill a mockingbird. Those mumsers ballet as we could be, but there’s a lawyer hasn’t diminished that passion never pay, you have to get your fee good reason for that. Who among us one iota. from them in advance. doesn’t routinely have men leaping In an effort then to dispel the MEN IN BLACK VESTS ... a around in tights walking through professional slur that we know naught rollicking good comedy in which their office door on a daily basis? And of culture, I have decided to review lawyers struggle to prevent alien life that gets old pretty quick. As for the the ten best lawyer movies of all time. forms from the planet Klyent from contention that we know nothing Oh, I know, I could have expanded destroying the world with stupidity, about classical music, well, we know my list to encompass the ten best avarice, calumny, treachery, neglect, this ... really great classical music died movies of all time, but the truth is selfishness and Brylcreem. The when that plane went down in the lawyer movies are almost all I watch. outcome remains constantly in Iowa cornfield in 1959. I don’t really understand most of the doubt. All right, so maybe lawyers aren’t other ones. INHERIT THE LONG-WINDED ... the best candidates to appreciate TO BILL A MOCKINGBIRD ... a A classic movie in which the what’s happening on the cutting edge haunting, lovely, sentimental look at forces of good, as portrayed by of culture. Maybe as a profession we life in a small Southern town as continued on page 12 12 ¥ sidebar SEPTEMBERÐOCTOBER 2002

To-Wit: At The Movies continued from page 11

Gwyneth Paltrow, challenge the by a smart, witty, handsome lawyer during which the members candidly constitutionality of a state statute in his mid-50s. He in turn only discuss their most lucrative verdicts. prohibiting the teaching of wants her for sex, and she agrees. Well, there you have it—my ten Marvinism, the controversial theory Based upon an actual fantasy. most favorite lawyer movies of all that all human beings are descended A LIEN ... A sci-fi thriller in time, and quite the list, don’t you from Marvin Cohen. Marvin is which Sigourney Weaver battles think? If nothing else, I have surely portrayed by the late Lee J. Cobb, to prevent vicious, invading laid waste to the claim that we lawyers whose performance is, I must say, a extraterrestrials from recording a aren’t a cultured bunch. Let me know bit stiff. But Gwyneth triumphs, as mortgage which would encumber what you think of my movie reviews. we knew she would, and she looks the entire planet. Who knows, if the idea catches on, I great in the process. A must see! RAGING BULL ... A tense, gritty might do it again sometime. I’m also I NEVER PROMISED YOU documentary clandestinely filmed pretty up on wrestling movies. A PLEA BARGAIN ... A great at a recent bar association meeting © 2002, S. Sponte, Esq. whodunit in which an unrepentant recidivist jaywalker does hard time when his lawyer for just a moment loses his concentration and pleads Spotlight continued from page 9 his client guilty to complicity in the disappearance of Judge Crater. Q A I laughed, I cried, I ate popcorn WHAT DO YOU CONSIDER On a rainy Saturday afternoon, TO BE YOUR GREATEST visiting a quaint, used bookstore with while the pitiful defendant is hauled ACHIEVEMENT? away to prison despite his relentless an open fireplace, then having a cozy A protestations that the light was yellow. Emigrating from Ireland by seating arrangement there and a few SOMETIMES A GREAT MOTION myself at age 13. shillings to spend on used books. ... An animated fantasy tale in Q Q WHAT TALENT WOULD YOU which a lawyer presents a clever, WHAT IS YOUR IDEA OF PERFECT HAPPINESS? MOST LIKE TO HAVE? well researched, innovative motion A which the court grants. A Having good health and peace Being able to speed read with E.T.—EVICTING THE TENANTS ... of mind. 100% comprehension. A poignant story about a poor, Q Q downtrodden family whose father WHAT ARE YOUR MOST WHAT DO YOU MOST VALUE IN YOUR FRIENDS? loses his job, his savings and his TREASURED POSSESSIONS? pension when the corporation for A My 2002-2003 PA Attorney’s A Loyalty, loyalty, loyalty! which he worked for 40 years goes License #15965 and my U.S. Q belly up because of executive Citizenship. WHICH LIVING PERSON DO mismanagement. The family is soon YOU MOST ADMIRE? Q evicted from their apartment and WHAT IS IT THAT YOU MOST A Queen Elizabeth II—I have dual forced to live on the street, cold and DISLIKE? citizenship, you know. hungry. What can I say? It’s every A Americans who don’t appreciate Q lawyer’s dream come true. what America has to offer. WHAT IS YOUR MOTTO? LIE HARD ... An explosive action A Live every day like it’s your last, thriller starring Divine as the hard Q WHAT IS YOUR GREATEST and one day you’ll be right. nosed lawyer who, in defense of EXTRAVAGANCE? his/her clients, strips to the waist and charges into a courtroom armed with briefs hanging from LawSpeak belts criss-crossed across his/her “Your lawyer in practice spends a considerable part of his life in doing distasteful chest. Not a pretty picture. things for disagreeable people who must be satisfied, against an impossible time limit and with hourly interruptions, from other disagreeable people who want to derail the DANCES WITH SHARKS ... A train; and for his blood, sweat, and tears he receives in the end a few unkind words to quirky love story about a beautiful the effect that it might have been done better, and a protest at the size of the fee.” young woman, played by Gwyneth — William L. Prosser, “Lighthouse No Good,” I. Journal Leg. Educ. (1948) Paltrow, who is hopelessly smitten SEPTEMBERÐOCTOBER 2002 sidebar ¥ 13 The Basics of Handling an Automobile Accident Case by Mike Ferguson, Esq. simply impossible. In an attempt to damages arising out of a motor vehicle provide the maximum amount of accident are lumped into one of two hen I received a call from useful information in the space basic categories—full tort and limited the sidebar asking that I provided, I have divided the article tort. A person who is deemed to have W prepare a “Practice Tips” into two sections. full tort rights has no restrictions on article as a follow-up to the two-hour The first portion deals with their ability to CLE program I presented on the the most common issues recover basics of handling an automobile plaintiff’s counsel will need damages for accident case, I was both flattered and to address when undertaking practice all losses and dismayed. You see, I live in a house- representation of an injured damages hold with a wife and three daughters. plaintiff. The second portion tips suffered in an As such, I am not accustomed to of the article, which will automobile having anyone care about my appear in the next issue accident, opinions on any subject, however of the sidebar, will provide a regardless of whether these trivial. summary of the process to be followed losses are economic (i.e., wage loss and Unfortunately, the glow associated when prosecuting an auto claim. medical expenses) or noneconomic with being asked to offer my “expert” (i.e., pain, suffering, inconvenience, advice quickly faded when faced with COMMON QUESTIONS etc.) Those who are bound by the the task of actually writing this AND ISSUES limited tort option have significant column. After three tries, it became 1. FULL TORT VS. LIMITED TORT restrictions on their capacity to make apparent that condensing a two-hour In Pennsylvania, all individuals a claim for non-economic damages. CLE into the space provided was making a claim for injuries and continued on page 14

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In order to determine which tort • The plaintiff was killed in the no-fault medical expense benefit. option applies to your client, you accident. First-party income loss benefits are must first look at any automobile • The plaintiff suffered serious, also available, but not mandatory. insurance policy on which they are permanent disfigurement in the These first-party benefits are available a named insured. The policy will accident. to the injured claimant regardless of indicate whether the client elected • The plaintiff suffered a serious who was at fault in the accident. the limited tort or full tort option. bodily injury (as defined by the When plaintiff’s counsel If the plaintiff is not a named insured Pennsylvania Motor Vehicle Code) undertakes representation of an under a policy but is an “insured” in the accident. injured claimant, they must determine (resides in a household with a relative • The tortfeasor was charged with what automobile insurance policy is who has an automobile policy), they driving under the influence and the applicable source for first-party will be bound by the policy of the was subsequently convicted or medical expense and income loss relative in the household in which accepted into the ARD program. benefits. Generally speaking, the they reside. If the plaintiff is not a • The tortfeasor was operating a medical bills of the injured plaintiff named insured under any policy and vehicle not registered in the state as well as any claim for income does not reside with a relative who of Pennsylvania. loss should be submitted to the carries an auto policy, they will have • The plaintiff was operating or automobile insurance carrier of any full tort rights. occupying a non-private passenger policy on which the plaintiff is a If the plaintiff is bound by the vehicle. named insured. If the plaintiff is not a limited tort option, they cannot make Section 1705 of the Pennsylvania named insured under any policy, the a claim for non-economic losses unless Motor Vehicle Code provides the bills and/or income loss should be one of the following exceptions controlling law on the limited tort submitted to any policy under which applies: and full tort issue. Plaintiff’s counsel they are an insured, i.e., the auto should become policy of any relative with whom they familiar with this reside. If the plaintiff is not a “named statute. insured” or an “insured” under any Mediation, arbitration and policy, the bills should be submitted all forms of conflict resolution 2. FIRST-PARTY for payment pursuant to the policy BENEFITS on the vehicle they were occupying at Oftentimes, the the time of the accident. This priority John M. Campfield, Esquire injured plaintiff’s of recovery of first-party benefits Vincent J. Quatrini, Jr., Esquire initial concerns is set forth in Section 1713 of the Dennis Slyman, Esquire after having been Pennsylvania Motor Vehicle Code. W. Bryan Pizzi II, Esquire involved in an There are two common exceptions automobile to the above-referenced general rules William M. Radcliffe, Esquire accident are regarding payment of medical bills determining who and income loss. The first exception will be paying their occurs where the plaintiff was injured medical bills and in a work-related automobile accident. whether they can In cases involving work-related obtain income loss automobile accidents, all medical benefits if they bills, as well as income loss, should be are missing work. submitted to the appropriate worker’s In Pennsylvania, compensation carrier, if available. all individuals In this scenario, the only claim for purchasing first-party benefits would be for Telephone 724-850-8ADR (8237) automobile “gap” income loss coverage, which P.O. Box 476 Greensburg, PA 15601 insurance policies is coverage afforded to the injured must purchase a claimant by their first-party benefit minimum $5,000 carrier for income loss damages not SEPTEMBERÐOCTOBER 2002 sidebar ¥ 15 covered by the worker’s compensation vehicle, the plaintiff has no choice but benefits are benefits which may be carrier. to obtain a rental vehicle, pay for the available either under the terms of the The second prominent exception cost of the same, then submit the auto policy on the vehicle the injured to the rules set forth above arises in rental expense claim to the tortfeasor’s plaintiff was occupying at the time of situations where the plaintiff was carrier at a later time. the accident, or under the terms of the operating or occupying a motorcycle injured plaintiff’s own automobile at the time of the accident. First-party 4. PRIORITY OF RECOVERY insurance policy. Underinsured medical expense and income FOR LIABILITY motorist benefits provide additional loss benefits are not available CLAIMS ALLEGING coverage for non-economic losses to those operating NON-ECONOMIC such as pain and suffering, as well as or occupying a AND ECONOMIC economic losses such as medical motorcycle. practice LOSSES expenses and income loss not covered Accordingly, all Claims for by first-party benefits. Underinsured medical bills are the tips non-economic motorist coverage does not provide responsibility of losses such as pain coverage for vehicle damage, property the injured and suffering and economic damage or rental expense. plaintiff and losses such as medical expenses In circumstances where there is no should be submitted to any health and income loss not covered pursuant liability coverage on the vehicle which insurance coverage available to to first-party benefit coverage should caused the accident and the tortfeasor the injured plaintiff. If no health be submitted to the insurance carrier has no other applicable liability insurance coverage is available, the holding the policy on the vehicle coverage, plaintiff’s counsel should bills are the responsibility of the which was at fault in the accident. initiate a claim for uninsured motorist injured plaintiff. In Pennsylvania, liability coverage benefits under the terms of the auto “runs with the vehicle”. Therefore, if policy on the vehicle the plaintiff was 3. VEHICLE DAMAGE AND John Smith is driving a vehicle owned occupying or under the terms of the RENTAL CARE EXPENSE by Bob Jones, and the negligence of plaintiff’s own automobile insurance When a plaintiff’s vehicle is damaged John Smith causes injury to another policy. Uninsured motorist benefits, in an accident, a claim for this damage motorist, the insurance carrier holding if available provide coverage for should be submitted to both the the policy on the Jones’ vehicle is the non-economic and economic losses, plaintiff’s insurance carrier, (if they first source of liability coverage. If including pain and suffering, as well have collision coverage) and the the liability coverage available on the as medical expenses and income loss tortfeasor’s carrier. Both companies vehicle which caused the accident is not covered by first-party benefits. will make arrangements to appraise insufficient to fully compensate the Uninsured motorist coverage does not the damage to the vehicle and injured plaintiff, a claim for “excess” provide coverage for vehicle damage, provide estimates for the plaintiff’s liability coverage may be made under property damage or rental expense. consideration. Oftentimes these the terms of any auto policy under estimates will differ. Therefore, which the tortfeasor (John Smith) 5. SUBROGATION plaintiff and counsel should compare is a “named insured” or “insured.” In the context of the automobile acci- the estimates and accept the one which If the liability coverage on the dent case, subrogation issues generally best suits the plaintiff’s needs. vehicle involved in the accident as involve the right of parties who are In the event that the injured well as any excess liability coverage providing medical expense benefits or plaintiff needs a rental vehicle, they available to the tortfeasor is still continued on page 19 should first look to their own policy insufficient to determine whether rental coverage to fully is available pursuant to the terms of compensate Aujay Investigative Service their policy. If so, a claim for rental the injured benefits should be initiated. If no plaintiff, a Retired United States Probation Officer rental coverage is available under the claim should with over 28 years of investigative experience applicable first-party policy, counsel be made for available for civil or criminal investigations. for the plaintiff should contact the underinsured Reliable • Dependable • Thorough tortfeasor’s carrier to determine motorist Reasonable Rates whether they may be willing to accept benefits, if a direct billing for a rental vehicle. If available. 724-864-4468 or 412-609-8714 (cell) the tortfeasor’s carrier is not willing to Underinsured e-mail: [email protected] accept a direct billing for the rental motorist 16 ¥ sidebar SEPTEMBERÐOCTOBER 2002 Young Lawyers Host District Justice Gathering

he Young Lawyers Committee of the WBA hosted a gathering ▲ of District Justices and Young Standing: Amber Leechalk, Jim Horchak and Jim Wells. Seated: Tim Kinney, Jeremy Boby, T District Justice Frank DelBene, Jr., and Michael DeMatt. Lawyers on Thursday, September 26, 2002, at WBA Headquarters. Since a Young Lawyer’s first contact with the judicial system is most often the District Justice, this gathering provided Young Lawyers and District Justices a unique opportunity to chat and get to know one another. The Young Lawyers Committee’s mission is to facilitate and foster a sense of camaraderie through educational, social and community events, as well as ▲ ▲ incorporating young lawyers into active Standing: Jennifer Love, Joyce Novotny- Standing: District Justice Mark Mansour, roles within the Bar Association. Prettiman and Rachel Yantos. Sitting: Lee Demosky and Peggy Tremba. Seated: District Justices J. Bruce King, Mark Bilik Becky Brammell, Scott Avolio and District WBA and Charles Conway. Justice Mary DiClaudio. and personal commitment to its goals Interested candidates should submit a Seeking and objectives and an understanding letter of application to the WBA Board of financial accounting for nonprofit of Directors, c/o the Bar Association. Assistant organizations. Currently, the Treasurer’s duties Treasurer are to serve as financial officer of the Mark Your organization and manage, with the he WBA is seeking a finance committee, the board’s review Calendars volunteer Assistant Treasurer of and action related to the board’s T to replace the Treasurer upon financial responsibilities; work with he Annual Holiday Dinner his retirement. The Assistant Treasurer the bar exec to ensure that appropriate Dance will be held Saturday, should have knowledge of the WBA financial reports are made available to TDecember 14, 2002, at the the board on a Hill Crest County Club in Lower timely basis; assist Burrell. the bar exec in Entertainment will be provided preparing the by The Hurricanes, a seven-piece Jablonsky Distributing Co. annual budget band that plays everything from Imports, Specialties and Domestic Beers and presenting the the 60s Soul of The Temptations budget to the board and Van Morrison to the Big Band for approval; and stylings of Frank Sinatra and Nat 724-834-2958 review the annual King Cole to the breezy sway of a Delivery Service Available audit and answer Samba, or the irresistible power of VISA, MasterCard & Discover Accepted board members’ vintage Rhythm & Blues. 8 Zeller Street, Greensburg • Open Monday thru Saturday 9 to 9 questions about Please plan to join us, and remember the audit. to wear your dancingwba shoes. SEPTEMBERÐOCTOBER 2002 sidebar ¥ 17 Actions of the Board

SEPTEMBER 24, 2002 •Accepted bid to construct storage • Agreed to purchase a dictionary • Agreed that LCL Committee will closet on third floor. stand in memory of Law Library take charge of coordinating a free • Agreed to secure two additional worker, Dorothy Mosier, and to CLE along with Orphans’ Court contractor bids for the main floor affix a plaque with proper recogni- Committee on how to handle kitchen. tion for both Dorothy and the bar. personal and professional matters •Heard report on publication of •Voted to allow three people to including drafting power of attor- judges’ opinions on WBA website attend the national Lawyer Referral neys and disbursing of client files. in a word searchable format which conference in mid-October. •Reviewed the Trial Academy’s pro- will be accomplished free of charge •Voted upon recommendation from posal to co-sponsor a golf outing to on two conditions: the attorney WBA member Stuart Horner to benefit the bar foundation and general has permission to post the mail 2001-2002 trial verdicts to asked Outreach Committee to opinions on their website and the our local legislators and to include work with Activities Committee to public has access to these opinions. the legislators on mailing list for plan the event. • Agreed to write a thank you letter future sidebar publications. • Agreed to draft building policy for to David Gold to acknowledge the •Voted to appoint Judith Ciszek to usage of technology equipment of time and devotion he has given to LLS Board effective immediately. the WBA by its members. This the Westmoreland Bar Association •Voted to register the WBA as a would include LCD projector, as former editor of the sidebar and provider for the Bridge the Gap visual projector, speaker system the Westmoreland Law Journal, and program, a mandatory CLE and laptop. active member and committee program for all new lawyers, and to •Accepted proposal by Trial chair. refer the information to the CLE Academy to hold a Mentor Mixer • Agreed to ask Chuck Dangelo, law coordinator. with new lawyers for purpose of clerk for Judge Ober, to serve as • Agreed to develop a written pairing new lawyers with experi- Chair of Law Library Committee. investment policy statement for enced trial lawyers to be held on • Agreed to allow out-of-county the Westmoreland Bar Association November 8 at 5 p.m. at WBA attorneys use of the attorneys’ and to explore whether our current headquarters. meeting room, which is located in investment manager will aid in this • Agreed to provide complimentary Law Library. process. subscriptions of the Westmoreland Law Journal to all local libraries. • Agreed to investigate the possibility And Baby Makes ... of posting the Westmoreland Law Journal on the web in a Dustin and Lisa Barr welcomed their daughter, Laura non-searchable format. Brynne, into the world on September 25, 2002. Brynne, born 41/2 weeks early, was 5 lb. 9 oz. and 20 inches long. •Discussed the need for WBA to be Dustin is partner with Flickinger and Barr in Ligonier. represented on the IOLTA board Jackie and Brian Knupp upped their family number to for two reasons: the future of pro five when Tucker John was born on October 15, 2002. bono at a local level is tied to the He was 8 lb. 5 oz. Tucker joins big sister Payton and big IOLTA board and 90% of the brother Paxton at home. Jackie is partner with Millstein and IOLTA board members are from Knupp in Youngwood. either Pittsburgh or Philadelphia. • Agreed to contact the PBA to encourage the state bar to use their two IOLTA Board appointments Lawyers’ Exchange* and to give one appointment to a Westmoreland Bar Association (*Free to all members of the WBA) member.

FOR SALE OR RENT Law offices/building. 11/2 blocks from Courthouse, Gbg. Four-story, well-maintained building with ample parking. Adjoining lot for expansion. Common areas—conference room, kitchen, 2 restrooms. Staff news and furniture optional. Pat Rodgers, 724-836-1206. 18 ¥ sidebar SEPTEMBERÐOCTOBER 2002 foundation focus “Know Your Credit Rights” Campaign n an effort to educate the public about important consumer credit legal issues, I the WBA launched a “Know Your Credit Rights” public education campaign that ran throughout the month of October. ▲ Held in conjunction with the PBA, this Volunteers for the United Way Day of Caring were (clockwise unique statewide program is designed to from left) Rebecca Brammell, Julia Moreman, Kate Wiatrowski, educate the public about their legal rights as consumers and HERO Project Director Virginia Lieberman, Ann Emmerling, covers such issues as credit collection, credit reports and Connie Nakles and Jackie Knupp. Not shown: KJ Collamer. debt management. Ads appeared in several local newspapers for a free Day of Caring Helps brochure, available through the WBA, that answers questions concerning mortgages, credit cards, loans and bankruptcy. HERO Project Radio was also a key to this campaign. Latrobe attorney Gerald W. Yanity was featured in a “Know Your Credit BF Trustees and WBA staff members helped Rights” broadcast on WCNS 1480 AM. Other members the HERO Project when they volunteered for of the WBA are also available to speak to your service W the annual United Way Day of Caring on organization on legal obligations and rights of consumers. September 5, 2002. The HERO Project encourages adults to report any suspicions of child sexual abuse. The volunteers worked together to mount posters, attach easel backs and gather materials that they then delivered to area libraries. According to HERO Project Director For complete Virginia Lieberman, their efforts “enabled the HERO insurance protection, Project to reach out to areas of the county that we often have difficulty accessing.” Nearly $100 in mailing costs and we’ve got you covered. several hours of preparation time were saved thanks to the efforts of the volunteers.

or over 60 years, USI COLBURN INSURANCE SERVICE F has been meeting the needs of Pennsylvania lawyers. We In Memory of can satisfy your insurance requirements through the following programs: Dorothy Mosier ❑ Medical Insurance xcuse me ... could you tell me where I can find the ❑ Employee Benefits For more details current issue of the Pa. Reporter?” Or perhaps your ❑ Disability Insurance or a quote on questions were more along the line of “Do you have ❑ coverage E Term Life Insurance change for the copy machine?” call today: ❑ Long Term Care 412-885-6570 Dorothy Mosier, the face you most often saw behind the ❑ Medicare Supplement 1-800-WCOLBURN desk at the Law Library, was the lady who assisted attorneys ❑ Professional Liability www.colburn.com in their search for answers (well at least the kind of answers ❑ Fidelity and Surety Bonds discoverable through legal research). Since her death in August, a number of attorneys have expressed a desire to make monetary contributions in Dorothy’s name. If you to wish to do so, mail your tax deductible contribution to the Westmoreland Bar 201 Caste Village, Pittsburgh, Pennsylvania 15236 Foundation. All funds will be used to benefit the Law Library in Dorothy’s memory. SEPTEMBERÐOCTOBER 2002 sidebar ¥ 19

Jury Trial Verdicts continued from page 8 The Basics continued from page 15 matter pursuant to Pa.R.C.P. 2252(d). additional rent, defendant’s share of Plaintiffs executed a Settlement common area maintenance fees, taxes some form of income benefit to the Agreement and Joint Tortfeasor and insurance, as well as expenses injured plaintiff to be reimbursed for Release in favor of Defendant incurred to clean and repair the those benefits out of any settlement Eat ’n Park. property. proceeds the plaintiff may recover. Plaintiffs’ Counsel: Anthony Defendant did not dispute that Medical expense and income loss DeBernardo, Jr., DeBernardo it owed certain amounts of rent, benefits paid pursuant to first-party Antoniono McCabe & Davis, P.C., Gbg. common area maintenance fees, taxes auto coverage are not subrogable. Counsel for Defendant Eat ’n Park: and insurance, to be appropriately However, medical expense benefits Anne Friday Beck, Law Office of set-off by rent collected by plaintiff paid by some private health insurance Joseph S. Weimer, Pgh. in re-letting the space. Defendant carriers, worker’s compensation, Counsel for Defendant Cintas: Paul conceded that it owed a reasonable the Department of Public Welfare T. Grater, Pgh. amount of repair costs to plaintiff, but and Medicare may create a valid Trial Judge: The Hon. Gary P. disputed the amount of those costs. subrogation lien against the claimant’s Caruso Further, defendant contested the recovery. Additionally, income benefits Result: Molded verdict for defendants. additional “double” rent provision paid by worker’s compensation or the The jury found no negligence on for defendant’s abandonment of Department of Public Welfare during behalf of Cintas, while 85% negligence the premises as an unenforceable the pendency of the claim also create was attributed to Eat ’n Park. The penalty. a valid subrogation lien against the verdict was molded to reflect the jury’s Plaintiff’s Counsel: Douglas G. client’s recovery. findings and plaintiffs’ release in favor Hipp, Oakmont It is imperative that counsel for of Eat ’n Park. Defendant’s Counsel: James M. the plaintiff take proactive measures Evans, Michael C. Hamilton, to determine whether, and to what THOMAS GRETOK Buchanan Ingersoll, P.C., Pgh. extent, valid subrogation liens may V. Trial Judge: The Hon. Daniel J. apply to the client’s potential recovery. LITTLE CAESAR EAST, INC., Ackerman, President Judge Failure to address subrogation issues A CORPORATION Result: Molded verdict for plaintiff prior to or at the time of settlement NO. 1005 OF 2000 in the amount of $73,278.92. The can produce disastrous results for Cause of Action: jury found the liquidated damages both the injured plaintiff and Breach of Contract—Lease Agreement clause enforceable. counsel. On February 14, 1989, the defendant entered into a lease agreement with plaintiff for space in a small strip Looking for a special way shopping center to be built on East Pittsburgh Street, Greensburg. The lease provided that defendant would to remember someone? pay minimum monthly rent plus its proportionate share of common area Births ¥ Deaths ¥ Marriages ¥ Anniversaries maintenance fees, taxes and insurance. Making Partner ¥ Passing the Bar In the event defendant would abandon ince 1991, the Westmoreland Bar Foundation has raised the leased premises, the agreement thousands of dollars to assist the poor, disabled, elderly and permitted plaintiff to charge additional children in our community. Through the Memorial Program, you rent during each month of abandon- S can honor a colleague or loved one with a contribution to the ment in an amount equal to the Foundation. Your gift will help serve the needs of our own who have minimum monthly rent. The ten-year nowhere else to turn for legal services. lease was to expire on December 30, If you would like to make a gift to the Foundation as 2000. However, defendant abandoned a meaningful expression of respect, please make the premises without notice to plaintiff check payable to the Westmoreland Bar Foundation on July 20, 1999. Plaintiff sought the and mail to WBA Headquarters, 129 N. Pennsylvania difference in the monthly minimum Ave., Greensburg, PA 15601-2311. rents of defendant and the new lessees, 20 ¥ sidebar SEPTEMBERÐOCTOBER 2002

CALENDAR of Events Top Ten Least Popular CLE Courses NOVEMBER 1. Gilding the Lily—The Rising Trend in Elder Porn 07 Criminal Law, Noon T 08 Mentor Mixer, 5 p.m. 2. So You Want To Be an Arbitrator? 11 Veterans Day Holiday 3. Magistrates We have Known and Loved 12 Planning, 4 p.m. 13 Membership, Noon O 4. Ethical Considerations in Family Law 14 Past Presidents, Noon 19 Family Law, Noon 5. Civil Rights for Muslims Board Meeting, 4 p.m. 6. Sexual Harassment in the Workplace— 20 Real Estate, Noon P What’s the Fuss? 21 CLE Lunch ‘n Learn: Orphans’ Court Statutory Developments, 7. The Wit and Wisdom of Children and Noon Youth Services 26 Vision Group, Noon 8. Military Tribunals—Come On, Give ‘em a Chance 28-29 Thanksgiving Holiday T DECEMBER 9. John Ashcroft and The Bill of Rights— 11 Membership, Noon A Snack and Learn 12 Municipal Law, Noon 10. A Primer on Office Efficiency— 14 Holiday Dinner Dance E Part IV, Dating Your Secretary 19 Elder Law/Orphans’ Court, Noon 25 Christmas Day Holiday N

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