Barrister Spring 2012

Prison Overcrowding: Caused by

Constitutional Trespasses?

BarristerThe Berks sPrING 2012

Presorted standard

U.s. PostagePaId

Permit #213 state College, Pa

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BOARD OF DIRECTORSFrederick k. Hatt, President

eugene OrlandO, Jr., President-Electg. tHOmpsOn Bell, iii, Vice President

James m. smitH, Secretaryeden r. BucHer, Treasurer

andrew s. geOrge, DirectorkeitH mOOney, Director

tOnya a. Butler, Directorandrew F. Fick, Director karen H. cOOk, Director

alisa r. HOBart, DirectorJill m. scHeidt, Past President

JacOB a. gurwitz, President YLS

BAR ASSOCIATION STAFFdOnald F. smitH, Jr., esquire, Executive Director

andrea J. stamm, Lawyer Referral/Secretarykaren a. lOeper, Law Journal Secretary

paula J. ziegler, Communications Managerpatsy page, Bookkeeper

melissa J. nOyes, Law Journal Editoreric J. taylOr, Law Journal Assistant Editor

mattHew m. mayer, Barrister Editor

Please submit materials or comments to: Berks County Bar Association

544 Court Street, P.O. Box 1058 Reading, PA 19603-1058

phone: 610.375.4591Fax: 610.373.0256

email: [email protected]

Thank YouOur thanks are extended to the numerous people

who have contributed the Berks Barrister. Your time, energy and efforts are sincerely appreciated.

Publisher: Niemczyk Hoffmann Group, Inc. Reading, PA | 610.685.0914 | nhgi.net

For advertising information contact [email protected]

Spring 2012The Official Publication of the Berks County Bar Association

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Through the Generations

Pioneering Legal Services in Berks CountyCommitted to the Cause of Legal Services

Fun at the Berks Jazz Fest

Local Firm Recognized as Charter Member of PBA's PLUS ProgramEnvironmental, Energy and Sustainiblilty Law

Prison Overcrowding: Caused by Constitutional Trespasses?Point/Counterpoint: Justice or Just This?

Departments:President’s Message: Keeping the Streetcar Line Responsive to the Passengers .... 3Book Review: Justice or Just This?: A Constitutional Trespass .......................... 14Restaurant Review: "Elegant yet Soul-warming Italian Food" in Temple ......... 11Upcoming BCBA Events .................................................................................. 12Miscellaneous Docket ...................................................................................... 20Barrister Buffoon: An Official True-Life Clem MacDougall Adventure .......... 22Foundation Updates .......................................................................................... 24Spotlight on New Members ............................................................................. 19In Memoriam .................................................................................................... 26Photos: March Madness ....................................................................................... 10 Bench Bar Conference ............................................................................. 13 Engaging in Dialogue with Public Officials ............................................. 25

BarristerThe Berks

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At the Conference of County Bar Leaders in February President Hatt accepted a County Bar Recognition Award for the BCBA’s Modest Means Program and Legislative Roundtables. Presenting the award were PBA President Matthew Crème (L) and PBA President-Elect Thomas Wilkinson (R).

President Frederick K. Hatt speaking at the open house for Community Justice Project’s new Reading office. It is staffed by attorney Abraham J. Cepeda and a paralegal. CJP is a legal services program that does not receive federal funding. As a result, it is able to litigate class actions and represent undocumented immigrants. BCBA’s past president John J. Speicher serves on its board of directors.

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President's Message Frederick K. Hatt, Esquire, 2012 President

keeping the streetcar Line responsive to Its PassengersRecently at a Bar Association function, while standing next to Executive Director, Donald Smith, I was asked how it feels to be “running” the day to day business of the Bar Association.

After glancing at Don, I replied that Don was really the person driving the Bar Association Bus, and that as President I was sitting in the seat directly behind him, keeping an eye on the road over his shoulder. Don, seeing a flaw in my analogy, correctly pointed out that he is more of a streetcar conductor than a bus driver. His route is set by the track, and he cannot make any detours. He can only adjust the speed, announce designated intersection stops, and wait for passengers to pull the buzzer cord. As always, Don was correct. His streetcar analogy summarized the Bylaws of the Association.

Determining Policy Bar Association Policy begins with its written Bylaws. In addition, over the years, the Association has developed a Mission Statement for the Association as a whole, and for its Committees. From time to time matters such as investments, determination of annual dues, MCLE, and potential conflicts of interest have also been reduced to written policies. Collectively these documents along with Association Minutes and oral traditions, as interpreted by the Officers and Directors, have governed the construction of the Association’s streetcar line.

Strategic Planning Process Attendance at the ABA Bar Leadership Institute in Chicago in 2010, instilled in Executive Director, Don Smith, immediate Past President, Jill Scheidt, and myself, a respect for the challenges that are coming upon the practice and the profession of the Law. The streetcar line appeared to be running smoothly for now in Berks County, but looking ahead we had to ask whether there were maintenance or extension of track issues that needed to be addressed. Under Don’s initiation, the Association reached out to the ABA about strategic planning services available to local Bar Associations. The Board of Directors authorized the engagement of the services of Jennifer Lewin, of the ABA staff, to initiate and guide the Association through a strategic planning process. The planning process was launched in June of 2011. Many of you participated in the first

phase of the process, which was a survey of the membership to evaluate current strengths and weaknesses. The survey was also to gauge the membership’s perception of the direction for the future.

Membership Survey The membership survey revealed that we have an engaged membership. ABA staff was amazed at the high response rate. The Berks County Bar Association participation rate was one of the highest the ABA has ever seen. The ABA staff was also amazed at the membership’s favorable perception of the value delivered by the Association, with 97% of the membership agreeing that the Association offered quality programs and services with which they were proud to be affiliated. The survey also documented deep concerns by the membership about what the future might bring. Questions trying to gauge

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concerns regarding the economics of the practice, and threats to the profession, triggered high concerns in the minds of 86% to 92% of the membership.

The Plan The Strategic Plan being developed is designed for a three year implementation, but it is also to be prepared as a work in progress allowing extensions into additional years. Initial work with the ABA staff, following the survey, resulted in a November 2011 meeting with all then current Association Officers and Directors, as well as all incoming Officers and Directors. That session resulted in the development of overall goals. An Executive Committee is now developing an implementation matrix that identifies the action steps needed for achievement of the goals, and also develops a timeline for implementation.

Action Already Taken Action has already been taken on membership concerns identified by the Strategic Planning process. One example is the creation of the new Commercial Transaction Section of the Association. The Section has held its initial meeting, under Chair Charles Phillips, and is already planning lunchtime seminars to be offered to the membership as a whole. Another area of concern identified was in the area of newly admitted lawyers, setting out on their own without the safety of a seasoned lawyer being available. The need for direction was expressed both on substantive legal issues, and on practice management issues. In response, a Mentoring Task Force was created. Focus groups have been conducted. The implementation of a Mentoring Program utilizing a “Safe Ask” model has been selected. The launch of the Mentoring Program was announced by the Task Force Chairman, Frederick Mogel, at the Legends From The Bar Program, held in April 2012. Under the “Safe Ask” model, a listing of seasoned attorneys is being created, who are willing to accept calls from new lawyers seeking direction, after they have exhausted their own research and resource efforts.

Membership Input Your involvement in the Strategic Planning process did not end with the completion of the survey in August of 2011. Please seek out the Officers, Directors, and Executive Director of the Association as work continues on the determination of action items and implementation timelines needed to complete the Plan. Please take time to review the Plan, when it is adopted by the Board of Directors. Please help Vice President G. Thompson Bell, III, as he leads us forward under the implementation schedule. Please help us keep the Berks County Bar Association streetcar line responsive to the needs of its passengers, you, the Membership.

Fun at the Berks Jazz Fest

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1: Milton and Olga Velez

2: Jeff Karver (L) and Lisa Siciliano (R) and their spouses

3: The effervescent Steve Gring cracking up his wife, Jill (L), and Liz McMunigal (R) by making an irreverent, and probably irrelevant, crack about the Executive Director who was posing as a photographer.

4: A few of the 40 who enjoyed the pre-concert food and beverage in the Kittrell Suite (clockwise from Left): Jane Sprecher, Judge Sprecher, Paula Barrett, Greg Young, Mrs. Young, Paul Herbein, Susan Frankowski and, with his back to the camera, Pat Barrett.

5: Jules and Bob Rice

Congratulations to Lifeline of Berks County On the Creation

of an Endowment Fund

Wert Investment Consulting Group Of Wells Fargo Advisors, LLC

1250 Broadcasting Road, Wyomissing PA 19610 610.378.3081 888.769.5167 [email protected] Fargo Advisors, LLC Member SIPC

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John T. Forry today. Of the seven third generation attorneys featured in the Legends from the Bar program, John was the only one to have practiced law with both his father and grandfather.

Reprinted with permission of the Reading Eagle

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A Proud Father and HusbandBy Bernard Mendelsohn, Esquire

You heard the story where the New York City tourist asks the native, “How do you get to Lincoln Center?” And the native replies, “Practice, man, practice!”

But there is another way. You could graduate from Brooklyn Law School where they hold their commencement at the Lincoln Center for the Performing Arts. That is what Brenna H. Mendelsohn did in 2003. And who handed Brenna her diploma? Her Mother, Toby K. Mendelsohn. The reason being that Brooklyn Law School has a tradition of allowing family member alumni to come on stage and hand the diploma to the graduating senior and family member. Toby graduated from Brooklyn Law School in 1964. During Brenna’s graduation ceremony there were fathers, uncles and brothers presenting diplomas, but Toby was the only mother. In the 1960s there were few women in the law school class, but today, according to Brenna, the number of females exceeds the males.

Toby, a native New Yorker and a great fan of classical music, opera and ballet was a frequent Lincoln Center ticket holder as a law student (SRO and “peanut heaven” in those days), was thrilled to have the opportunity in 2003 to actually be on the stage of the place she loves. But the greatest thrill of all was to be on the stage to hand her daughter her Juris Doctor—a moment one can never forget.

On April 5 the Berks County Bar Association played host to seven, third generation attorneys. Called “Legends from the Bar, Generations of Mentors," the program served as a kick-off for a new mentoring project, Safe Ask. For more information on the project, please contact the Executive Director. Fred Mogel, chair of the Mentoring Task Force and himself a second generation attorney, served as moderator for the Legends program.

1: Mark Koch, Fred Mogel and Brenna Mendelsohn2: Jesse Pleet, Lou Shucker and Betsy Hawman Sprow, mother of Mark3: Judge Stephen Lieberman, Bernie Mendelsohn ( father of Brenna), Chris Eves, John Speicher and Bill Bernhart4: Some of the 40 members who attended the event5: Mark Sprow and Retired Judge Albert Stallone

6: The Third Generation (L-R): Tom Leidy, Mark Sprow, Mark Koch, John T. Forry, Brenna Mendelsohn, moderator Fred Mogel, John Speicher and Chris Eves

Legends from the Bar, Generations of Mentors

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Pioneering Legal Services in Berks County By Louis M. Shucker, Esquire

There has always been a special bond that unites legal services attorneys, a bond that ignores generational differences and geographic location. That bond was never more evident than the 40th anniversary celebration organized by Don Smith and the Berks County Bar Association in 2009. Don afforded me the privilege of reminiscing about the “pioneer days” of legal services and what follows is an adaptation of those remarks.

I was hired by Tri County Legal Services (Berks, Lancaster and York) and appeared for work in November 1971. The only other attorney was Gene Zenobi who showed me to my office, but otherwise didn’t say much. After several hours I tried to strike up a conversation and suggested to Gene that he must enjoy the work he was doing. When he asked gruffly why I would say that I thought about heading out the door and not returning. But I stayed, stayed for another 20 years and never regretted a moment. Gene and I became good friends and remain so to this day.

Lee Rothman and Mark Weinstein joined Gene and me in 1972. We became fast friends and in 1973 not only worked together but lived together, an arrangement that was to last several years. Gerry Sigal, who recently passed away, was the president of the Board of Directors and was immensely helpful in assisting four adult delinquents in learning to practice law and become part of the Berks legal community. Until his untimely death, Gerry continued to be a friend and mentor.

The four of us were committed to the cause of legal services. We all possessed a passion for the work and a naїveté that we could change the world. Our rallying cry was “Viva la revolution!” If you have been looking closely you may have noticed that we did not, in fact, change the world. We didn’t even come close. Our rallying cry has, regrettably, become “Viva Viagra!” However, I would like to think we, and the others who joined us, had some impact on our little patch here in Berks County.

I would like to suggest that the impact was threefold. First, we were able to provide poor persons who would not otherwise be able to afford legal representation with access to a lawyer both with respect to individual legal issues as well issues that affected a broader class of poor persons. Secondly, we helped pave the way for future legal service lawyers, enabling them to more easily represent their clients before the bar. Lastly, with the cooperation of the Bar Association we helped develop what I consider to be a model pro bono program which our Bar has generously supported.

Legal Services began in 1969 as part of the Office of Economic Opportunity. It was one of the many Great Society programs instituted by President Lyndon Johnson in the 1960s including medicare and medicaid, housing assistance to the poor, job opportunity programs, and others designed to alleviate poverty in America. These programs were part of the rise of the modern welfare state which were destined to run smack dab into good, solid Berks County values.

Berks Countians were proudly self-sufficient, and enjoyed a strong work ethic. If they encountered a problem they couldn’t solve themselves they turned to family, friends or neighbors rather than the government. They resented those who they considered to be freeloaders, too lazy to work, or just wanted to game the system. Our challenge was to convince the larger

public that poverty was not a moral issue but rather an economic one. We believed that our clients were no different from those of other attorneys, only poorer.

Legal Services originally encountered a certain amount of hostility from members of the local Bar. With certain notable exceptions (Darlington Hoopes, Dave Kozloff and Clarence Mendelsohn come to mind), most of that hostility came from older members who were not familiar with the concept of free legal services to the poor. Some felt, wrongly as it turned out, that the provision of free legal services would eliminate some of their business. Others were opposed to free legal services as a matter of principle. Their attitude was no different in many respects from the majority of the people of Berks County which, of course, they were part.

This clash of values was never more evident than with respect to the issue of in forma pauperis divorces. President Judge Hess, who otherwise had a soft spot for Legal Services, was determined that no woman would ever obtain a “free divorce” while he was on the bench. He felt that every litigant had the obligation to pay a filing fee. For our part, we felt that access to the courts was too precious a right to depend on the size of one’s bank account. So the issue was joined.

All of our petitions seeking in forma pauperis status were, somehow, assigned to him. “Do you smoke cigarettes? If you would stop for six months you would have enough money to pay for your divorce.” “Do you have family? Why can’t they help you?” I’m sure you get the idea. We would present what we felt was a perfect case for granting in forma pauperis status, but Judge Hess would find a way to reject it.

Quite frankly, we were getting slaughtered. By one count, it was Hess 23, Legal Services 0. If it had been a high school football game they would have invoked the mercy rule. However, what we may have lacked in legal knowledge and skill we made up for in persistence. Not only did we continue to bring cases before Judge Hess, but we appealed a number to the Superior Court as did our colleagues in other counties. Soon, I suppose, the courts became weary of hearing the appeals and the Supreme Court enacted Rule

240 granting automatic in forma pauperis status in many cases. Judge Hess retired shortly thereafter, and the issue soon became moot.

Legal Services attorneys represented thousands of individual clients in a variety of domestic disputes, landlord-tenant matters, unemployment compensation appeals, applications for social security and SSI benefits, requests for public welfare benefits including food stamps and medical

benefits, etc. We also brought a number of suits seeking to represent a broader class of clients in an effort to establish due process rights and entitlement to a variety of government benefits. We were successful in some instances, not so in others, but in all cases we felt that our clients had access to adequate representation, the ultimate purpose of the Legal Services program.

Some examples: We brought suit in federal court to require the Reading Housing Authority to grant tenants informal grievance hearings to tenants facing eviction as required by the federal regulations. We were in the chambers of Judge E. Mac Troutman when he phoned John Forry (the elder) at his home on a Friday afternoon. John, according to his wife, was puttering

"We all possessed a passion for the work and a naïveté that we could change the world."

Berks Barrister | 9

in his garden, but soon came to the phone. Judge Troutman did most of the talking, an eviction was prevented and there was an agreement that thereafter the RHA would provide grievance hearings.

In a case that went to the Pennsylvania Supreme Court the office successfully challenged the refusal by a local agency to permit a Caucasian couple to adopt an African-American child. We also were successful in challenging the standing of foster parents to adopt a child in their care, a case that eventually led to a change in the law.

When we began to practice, men who failed to pay their child support payments were picked up on a warrant, brought to the courthouse, and placed in lockup to be brought before a judge either at 9:30 A.M or 1:30 P.M. Our office would get a call sometimes literally minutes before the hearing and asked to come to the courthouse to represent the defendant. We would rush over, hold up court annoying both the presiding judge and the remainder of the bar who had to wait while we argued why the philanderer should not be imprisoned. We were able to convince the court that it would be more efficient and cost effective to send out petitions directing the defendant to appear in court and show cause why he shouldn’t be held in contempt. The system in place today is a direct result of those discussions with the court.

We were also successful in obtaining unemployment compensation benefits for persons who had been terminated from their employment. A number of those cases were resolved in Commonwealth Court in which we made regular appearances. One notable case involved Gene Zenobi’s successful efforts to obtain benefits for an African-American employee who was terminated for his refusal to shave off his beard in violation of the employer’s appearance code. Gene argued both that shaving caused the employee skin irritation and, in addition, it was a violation of his First Amendment right of expression. The court bought the former and never addressed the latter.

Secondly,. I would like to think that we paved the way for future Legal Services attorneys. Herb Karasin joined us in 1974 and in 1975 Barbara Hart and John Alexander arrived. In 1976 Jimmy Carter was elected president and funding for legal services increased so that we were able to hire several new attorneys. In the 1970s Bob Manara, George Gonzalez, Sharon Scullin, Frank Weisbarth and Sanford Kahn came to Berks County. In 1980 Judge Ludgate and Elaine Battle were hired. Although several attorneys left, by the end of the 1970s and early 1980s Legal Services employed eight attorneys making us one of the larger firms in the area at that time.

We always took the position that we were no different than other attorneys practicing law in Reading. We had attended the same law schools, suffered through conflicts of laws and the Uniform Commercial Code, and passed

the Pennsylvania Bar exam. We made a concerted effort to integrate our selves with the rest of the bar. We consciously joined the Bar Association, served on committees and attended Bar functions. We socialized with our contemporaries such as Jay Tract, Neal Lewis, Al Crump, Dave Binder, Merv Heller, and others. Judge Grim and his wife, Louise, invited several of us over for dinner to assure that we at least once got a home cooked meal. Al and Suzie Crump did the same. Many of these contemporaries had volunteered for legal aid or participated in some form of clinic a in law school. Now almost every law school graduate has had some type of clinical experience.

We attempted to be respectful to the Court (almost always–well, there was one instance when Lee Rothman told District Justice George Graeff what he could do with his rule-book) and our fellow attorneys (usually), to come to court prepared and to represent our clients zealously but within the bounds of propriety. And, golly, gee, some of us were just nice guys. By the end of the 1970s Legal Services had become a firmly established part of the Berks County Bar.

A measure of that acceptance came in the early 1980s. Ronald Reagan was elected president in 1980. Prior to becoming president, Reagan had been governor of California where he attempted to scale back state spending by eliminating or curtailing many of the Great Society welfare programs. He was vigorously opposed by California Rural Legal Services which, along with Community Legal Services in Philadelphia, had the reputation as being the best and most aggressive Legal Services programs in the country. CRLS thwarted Governor Reagan at almost every turn. When Reagan assumed the presidency in 1981 one of his first efforts was to eliminate legal service funding.

The Legal Service community sought the assistance of the American Bar Association as well as state and local bar associations in lobbying for continued funding. The American and Pennsylvania Bar Associations both submitted strongly worded resolutions requesting funding be continued. We were also pleasantly surprised when the Berks County Bar Association adopted a resolution drafted by Darlington Hoopes supporting legal services.

Although funding was sharply reduced, legal services programs throughout the state and country survived. However, not only legal services funding was reduced but so was funding for other social welfare programs causing, in part, an uptick in poverty. The higher poverty rate, when added to an increase in the areas immigrant population, caused an increased demand for services. At the same time, budget cuts reduced the supply of attorneys to provide the requested services. As might be imagined, the increased demand for services and reduced supply of attorneys caused a crisis within the Legal Services office. In the mid 1980s our local office contacted Barbara Kitrell, then

LEGAL SERVICE PIONEERS IN 1974 (l-r): Lee Rothman, Lou Shucker, Hal Funt (Lancaster County), Gene Zenobi, Kathy Funt, Vicki Stickler (Weinstein’s future wife) and Mark Weinstein


director of the Bar Association, and began discussions that led to the creation of our pro bono program.

As I am sure you know, what has developed is an award winning pro bono program in which almost every attorney in the County participates in one form or another. At the 40th anniversary luncheon to which reference was made above, there was also a recognition of the pro-bono attorneys who had participated and made the program so successful. An award is given each year to a local attorney who best exemplifies the spirit of the pro bono program.

In closing, I would like to recall a vignette which I believe captures the essence of legal services. It involves Sanford Kahn who tragically passed away after an operation to remove a brain tumor. Sanford came to our office in his mid 40s. He had served in the military and worked as a professional journalist. Before joining our office he had been head of the Pennsylvania Department of Consumer Protection.

I refer to Sanford’s resumé not in an attempt to eulogize him, but only to point out that by virtue of his age and life experiences Sanford possessed a worldliness and wisdom that the rest of us lacked. So it was one late winter

afternoon when, like many other law offices around town, a bunch of us gathered informally in Sanford’s office.

During the course of our conversation we complained about judges who didn’t interpret the law exactly as we felt they should; other attorneys who had the temerity to represent their clients as zealously as we represented ours; bureaucrats who wouldn’t advocate for their clients as vigorously as we thought they should ; and, if you can believe it, landlords and merchants who believed they had a right to make a profit.

As we began to lose steam, Sanford, who had merely listened, finally spoke up and a voice barely above a whisper said: “You know, there are two things that will always be present in this world–evil and poverty. There will always be disease, homelessness and hunger, and there is nothing we can do to eliminate it.” Sanford then hesitated a second before continuing: “But it’s wrong not to try.”

Louis M. Schucker, Esquire, is in private practice and serves as Divorce Master for the County of Berks.

Captions:1: Chad Lubas, Rick Long, Barry Sawtelle

and Matthew Kriebel2: Andrew Howe and Beth Auman

3: Al Kauffman, Pete Schuchman, Bill Bispels, Anna Ferguson, Andy George and Greg Shantz

4: Mike Hollinger, Lisa Ciotti, Mahlon Boyer and Thad Gelsinger5: Jill Koestel, Jill Scheidt

and Liz McMunigal6: During the course of

the afternoon a total of 50 members stopped by for basketball, food, beverage and fellowship.

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“Elegant, yet Soul-Warming Italian Food” in Temple!By Susan N. Denaro, Esquire

I knew a little Italian lady who fervently believed the real reason crusty Italian bread was invented was to sop up every last drop of Italian gravy. That’s exactly what we found ourselves doing at Il Cibo by Monte Lauro on April 22nd. But unlike the red sauce my grandmother called gravy and served over pasta, the gravy we couldn’t leave behind was a silky, rich duck-based demi which was served over an exquisite lentil cake studded with braised duck confit. The dish was garnished with the thinnest pear slices that added a sweet element to the starter for the spring themed dinner. The darkness of our corner of the restaurant helped hide the fact that the dish was not one to be eaten with the eyes as all the elements except the pear slices were all the same light brown color. It just didn’t matter as the dish may be the best duck course I have ever eaten and it left all of us at the table wanting more.

Il Cibo by Monte Lauro is one of Berks County’s best-kept secrets. It’s the brain-child of Luigi D. Candelori, a graduate of the Culinary Institute of America. He and his family own Monte Lauro

Italian Specialty Foods at 1114 Mount Laurel Road in Temple. The Candelori family also has a stand at the Reading Fairgrounds Market. About one weekend a month, Luigi moves the shelves in the Temple store out of the way and replaces them with tables. He offers a set menu dinner that is always mouth-watering to read. The popular dinners are featured on a Saturday and a Sunday and they fill-up very quickly. The average cost is $55.00 per person. Those lucky enough to get a reservation enjoy some of the most elegant yet soul-warming Italian food around. The late Fred Giorgi was often spotted at Il Cibo dinners.

The second course in Luigi’s April dinner featured fresh asparagus, as any good spring dinner predictably would and should. But this dish was a speck and asparagus risotto finished with an aged Piave cheese. The overly generous serving of perfectly done risotto had just the right balance between the smoky ham and the bright yet earthy asparagus. It was a little salty, but the restaurant reverberated with the sound of all the happy spoons scraping the bowls clean.

The only choice one has during Luigi’s dinners is which entrée to order and this has to be done at the time the reservation is made. The rest of the menu is set and his ability to present a dazzling menu rarely disappoints. Our choice for the Spring dinner was a slow roasted porchetta served over stewed barlotti beans with rosemary and garlic. It was topped with perfectly sautéed rapini. The bitter green is an acquired taste for the uninitiated, but my grandmother would serve it at every family meal when it was in season. Although the first couple of bites of the pork seemed a little dry, as the elements on the plate came together, the simplicity of the entrée gave way a an excellent, homey dish that was as satisfying as it was memorable.

The other entrée choice in April was a delicious-looking pan seared Maryland rock bass. This fresh-water fish was served over a cannellini bean and cauliflower puree. It was topped with a grape tomato lime bruschetta.

In most Italian homes, a simply dressed green salad is served after the meat course. It is considered a “digestivo” and is meant to aide in the digestion of the meal. Luigi’s insalata for this dinner was a plain, soft lettuce salad tossed with a light white balsamic vinaigrette. The simplicity of the salad was the perfect note to follow the richness of the first three courses.

Somehow we all found room for the Amarena cherry and almond torte that concluded our evening. It was sweet but light and the serving size was small enough to keep us from feeling guilty for having more than just a bite or two. While we were naively expecting fresh cherries, the dessert actually featured dried cherries and a light cherry-based sauce. The white icing was thick and sugary. No evening at Il Cibo is complete without one of Luigi’s cappuccinos. He uses a special coffee pod from Italy that makes the perfect cup every time.

One of the best parts about Il Cibo is that it is BYOB. Since everyone places the entrée order at the time the reservation is made, it is easy to pair wines for the various courses and to compliment the entrees for everyone at the table in advance of arriving at the restaurant.

For more details, about upcoming dinners, contact [email protected] or stop by the Candelori’s stand in the addition, at the Fairgrounds Market. While you are there, check out all they have to offer and if you like coffee, don’t leave without having one of their cappuccinos. Whether you choose their prepared vegetables for the perfect antipasti platter or their imported cheeses, you won’t be disappointed. If you find yourself at market early in the morning, try one of their omelets. They are served with fresh home fries made with really good olive oil. They are far superior to the hash browns you will find in most of our local diners.

Editor’s Note: Susan N. Denaro, Esquire, is a partner at Rabenold Koestel Scheidt and a gourmet cook.

Restaurant

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Roasted porchetta over stewed barlotti beans and topped with sautéed rapini.


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Upcoming BCBA EventsJUNE 13 Picnic and Golf Tournament at Galen Hall

AUGUST 30 Bus trip to Philadelphia Phillies

SEPTEMBER 20 Legends of the Bar with Judge Stallone and Jay Abramowitch

OCTOBER 5 Memorial Service

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1: The ballroom was packed for the ethics program

2: Criminal Bench Roundtable (L-R): Judges Yatron, Lieberman, Parisi and Keller

3: Always popular, Ellen Freedman’s program on technology set a record for attendees at a break-out session—91!

4: Civil Bench Roundtable (L-R): President Judge Schmehl, Judge Rowley, Dan Bausher and Judge Sprecher

5: Ken Myers looking guilty as he hides his smartphone

6: The CLE offerings were so good Daryl Moyer flew in from Florida to attend. He is the tanned one sitting next to Judge Keller

7: Both the District Attorney and the Public Defender were in attendance, but sitting rows apart.

8: Family Court Roundtable(L-R): Judges Ullman and Lash with the Chair of the Family Law Section, Dawn Palange

9: Time to celebrate completing 6 hours of CLE (L-R): Mark Poist, Anna Ferguson, Sharon Gray and Liz Ebner

10: A seasoned gathering (L-R): John T. Forry, Carl Mantz, Frank Mulligan and Joe Antanavage

11: Karen Cook and Mary Kay Bernosky

12: Marital Bliss at the Bench-Bar: Ed and Marge Collins

13: Leaders of the Bench and Bar: BCBA President Fred Hatt and President Judge Jeffrey Schmehl

14: Time for Refreshment(L-R): Ellen West, Jason Glessner, Colin Boyer and Alisa Hobart

15: Enjoying the Bar Experience (L-R): Jay Kurtz, Rashid Santiago and Eric Taylor

16: President Hatt calls PBA Executive Director Barry Simpson to the podium to accept BCBA’s contribution of $10,000 in support of the PBA’s Legislative Relations Department

17: Joe Bradica (L) receiving the Passport First Prize—a Kindle Fire and cover

Bench-Bar Conference

PoInT

Mandatory Sentencing and Sentencing Guidelines: Both Do not Constitute Constitutional Trespasses that Result in Prison overcrowding.

By Donald F. Smith, Jr., Esquire

The Honorable Jeffrey K. Sprecher was a star athlete while a student at Fleetwood High School. In fact, rumor has it that the number of home runs he hit while a Tiger still stands as a record today.

Last fall, in his twentieth year on the bench, Judge Sprecher, following in the footsteps of Berks Judges Gustav Endlich and Albert Stallone, published a book he authored: Justice or Just This? A Constitutional Trespass. As explained in the biography that begins the book, “Confrontations with mandatory minimum sentencing and sentencing guidelines…have forced his hand to pen this book.”

With its publication, has he hit a home run?

Chapter 1 begins with the proposition that a constitutional trespass has occurred because “the executive and legislative branches for the last 30 to 40 years have taken sentencing authority from judges by passing mandatory minimum sentence laws and creating the Pennsylvania Commission on Sentencing.”

It becomes readily apparent that much research went into the writing of the book. Reviewing the history of incarceration in Pennsylvania, the Judge points to the pivotal, turning point as being when the Pennsylvania Sentencing Commission took effect in 1982 with its goal “to ensure that judges throughout Pennsylvania sentence according to established guidelines.”

The Judge explains its function: “The commission assigns a mathematical value for each of the defendant’s prior crimes committed and for any crime that he is now

being sentenced. The score for a prior record and the score for the gravity of the current offense are plotted on a grid. From these two points comes the standard range from which the sentence is usually imposed.”

The numbers In 1940 Pennsylvania had 6,957 inmates, and for the next forty years the inmate population averaged 7,000 to 8,000. Beginning in 1982 a “boom behind bars” occurred, leading to a state prison population today of 52,000. Interestingly, while the state population increased by 4.2 percent from 1940 through 2010, the prison population, over the same period of time, increased 700 percent.

The Commonwealth had eleven prisons in 1983, only to have that number increase to twenty-seven over the next fourteen years. Staffing in the state corrections system has increased more than 300 percent over the past thirty years.

Book ReviewJustice or Just This?

A Constitutional Trespassby Judge Jeffrey Kent Sprecher

Point: Donald F. Smith, Jr., Esquire/Counterpoint The Honorable Jeffrey K. Sprecher


Despite these increases in capacity and staffing, the Department of Corrections has recently had to transfer 2,000 inmates to prisons in other states. We are literally overflowing with defendants sentenced to confinement! In 2010 the state budget line for corrections was $1.79 billion, an increase of nineteen times over what had been the budget allocation in 1980. It is noted that the average cost to house one state prisoner was $35,000 in 2009.

Locally, the Berks County Prison is “bursting at the seams.” Expanded in 1993 to house 747 inmates, in 2010 the county prison had an active inmate population of 1,046.

The reader is led to believe that the increased prison population and the resulting increased capital and operating costs can be attributed to the mandatory minimum sentences and sentencing guidelines.

Trespass I However, the point of the book is the constitutional trespass viewed in two parts by the author. The first trespass is claimed to have occurred by the passage of legislation imposing mandatory minimum sentences for certain offenses. For example, once a district attorney, who is prosecuting a school zone drug case, files the required notice that imposition of a mandatory sentence is being sought, a judge must sentence to the mandatory minimum. Judge Sprecher relates the case of a 70-year-old defendant who had been arrested for a drug sale even though “he had merely followed his daughter’s order to give a package to a person at the door,” and he had no prior record. Instead of sentencing him to the one-to-two year mandatory minimum state sentence ordered by the district attorney, Judge Sprecher imposed a nine month to twenty-three month county sentence. When the district attorney appealed, the

Judge reversed himself and resentenced the defendant to the mandatory without waiting for the appeal process to play out.

Why concede so quickly? In a footnote, he writes that, in multiple cases, appellate courts have reversed trial court judges who have failed to impose the requested mandatory. To a lawyer-reader a review of the courts’ reasoning, at least in summary fashion, would have been interesting.

At the Pennsylvania Bar Association’s 2012 Midyear Meeting, Chief Justice Ronald D. Castille advised those attending one of the seminars: “If I were a defense attorney, I would bring an Eighth Amendment challenge to a nonviolent mandatory.”

Such a comment may indicate a changed climate in the appellate courts.

Possibly detecting that climate change, earlier this spring, Franklin County Senior Judge John R. Walker refused to apply the mandatory minimum sentence in a case where the defendant sold marijuana to an undercover informant in the parking lot of a church where neither party knew the church included a nursery school.

As reported in the March 29 issue of The Legal Intelligencer, Judge Walker termed the Drug-Free School Zone Act “ʻpoorly drafted’ and ‘an overreaction by the state legislature.’”

Judge Sprecher writes of the injustice in having to give a mandatory minimum sentence of two to four years to a middle-aged woman who simply sold “three marijuana cigarettes in a school zone, unrelated in any way to the school or to a child.”

Berks District Attorney John T. Adams, unlike his predecessor, has shown a willingness to forgo the imposition of the mandatory sentence in school zone cases where students are not at risk. In a matter where the district attorney is not so reasonable, this writer believes that defense attorneys could argue and

trial judges could find that the requested mandatory in a nonviolent case is “cruel and unusual punishment” and violates the Eighth Amendment to the United States Constitution.

Finding these unjust provisions unconstitutional may actually be an easier route for change than achieving legislative change. As Judge Sprecher points out, increasing the number of jails has meant creating more jobs in often blighted and underemployed rural areas. Also, legislators fear being viewed as “soft on crime” if mandatories were to be eliminated.

State Senator Stewart Greenleaf (R-Montgomery County) was one of the lawmakers who led the effort in passing legislation adopting the mandatories. He has since admitted it was a mistake, most recently at our 2011 Bench-Bar Conference. However, even with the respect Senator Greenleaf has earned as a former prosecutor, as chair of the State Senate Judiciary Committee for more than 25 years and as the longest serving state senator, he finds convincing his colleagues to


change the law a difficult challenge in light of the political realities noted above.

Currently, he has two bills—“two baby steps”—languishing in committee. Senate Bill 100, referred to as the Criminal Justice Reform Act, would, among other things, allow the Department of Corrections to move those offenders with short minimum sentences more quickly to community correction centers for community-based treatment, where job training and other educational opportunities would be provided, and it would make more nonviolent offenders eligible for alternative sentencing programs. His Senate Bill 1205 proposes a change with respect to drug trafficking sentencing by allowing a judge to impose less than the mandatory “if the court has a compelling reason to believe a substantial injustice would” otherwise occur.

If a leading legislator, during tight budgetary times and supported by multiple

studies demonstrating the ineffectiveness of mandatories, cannot move his colleagues to make even minor changes, legislative change seems well-nigh impossible. Senior Judge Walker may get further with his seven-page opinion.

Trespass II The second part of the proclaimed constitutional trespass is the General Assembly’s establishment of the Sentencing Commission and its imposition of sentencing guidelines on the trial judges beginning in 1982. According to Judge Sprecher, the court’s discretion in sentencing has been “stolen or at best taken through constitutional trespass by legislation that has taken discretion from them.”

He contends that they force judges “to act like computers.” As described above, sentences are set by determining mathematical values for the prior record and the gravity of the current offence. Nevertheless, judges are

permitted to deviate from the guidelines, if reasons for the deviation are on the record.

A statistic often repeated in the book is that “90 percent of all sentences by all the judges in Pennsylvania are consistent with the commission’s guideline ranges.” Given the repetition, Judge Sprecher seems to imply that such compliance is a bad thing.

However, the public no doubt wants to believe our courts take their work seriously, weigh each case carefully and impose the appropriate sentence 100 percent of the time. By being allowed to deviate from the guidelines, why should one think otherwise?

Is there support for the guidelines? The 90 percent statistic would suggest that the Judge’s colleagues find them acceptable in most cases. In fact, he writes: “Accepting the plea and a standard range sentence is the safest, least controversial and fastest way to proceed.” Whereas, he cites a 2006 study which found a majority of the state’s 326


sentencing judges oppose the mandatory minimums, no such support is described for elimination of the guidelines.

need for Guidelines The Berks County Bar Association recently hosted a seminar on sentencing in which Judge Sprecher participated, along with District Attorney Adams and criminal defense attorney Jill M. Scheidt. The District Attorney spoke in support of the guidelines, citing the consistency they provide. “A defendant in Erie County will receive the same sentence as one in Berks for the same offense and with the same prior record.”

Attorney Scheidt and the District Attorney, recalling his earlier career in private practice, both noted that criminal defense attorneys are comfortable with the guidelines because they enable the attorney to knowingly advise the client considering a plea bargain as to what to expect if instead the defendant takes an open plea or he or she goes to trial and is not acquitted. In one paragraph of his book, the Judge acknowledges both arguments but accords them little weight.

Ironically, on the very same day as the seminar—March 21—the United States Supreme Court issued opinions in two cases finding defense attorneys ineffective for the advice they provided, or failed to provide, at the plea bargaining stage, only to have the sentences following guilty verdicts be much higher than that which had been offered during the plea bargaining.

In the one case, Missouri v. Frye, 566 U. S. ___, ___ (2012) (slip op., at 7), Justice Anthony Kennedy writes: “The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.”

The Justice then quotes from Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992): “To a large extent … horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Id. (Emphasis in original.)

Such is very much the case in Pennsylvania. As set forth by Judge Sprecher, the Pennsylvania Commission on Sentencing reported that 73 percent of the criminal cases in Pennsylvania were disposed of in 2007 by negotiated guilty pleas; 22 percent by open guilty pleas; three percent by trial; and 2 percent without sentence.

Given the rights guaranteed by the Sixth Amendment of the United States Constitution, having counsel who can provide knowledgeable advice and, negotiate accordingly at the plea bargaining stage, is too important a factor in support of the guidelines to be lightly dismissed.

Furthermore, this reader is not convinced that elimination of the sentencing guidelines will decrease the inmate population. On page 8 of his book, Judge Sprecher notes that trial court judges in Pennsylvania are elected to 10-year terms and only have to run for retention, not re-election. Thus, “they are by design removed from politics. Judges are in office to do what is right, regardless of an issue’s popularity.” Compared to the political positions of governor, the General Assembly and district attorney, he asks: “Which one would you prefer to make the very difficult and unpopular sentencing decision?”

Nevertheless, sixty-two pages later he writes that no judge wants to be known “as being ‘softest’ on crime.” While that point is made in reference to the Commission keeping statistics on all sentences, whether they are in the standard, mitigated or aggravated range, one is hard pressed to believe that a jurist’s

concern over the public’s perception would be any different with the elimination of the Commission and its guidelines.

only one Trespass Proven In the end, Judge Sprecher concludes that mandatory minimum offenses and sentencing guidelines “all usurp the judge’s need to think and analyze.” Such is clearly the case with all mandatory sentences, whether noticed by the district attorney or created by statute. The judge has no choice, no need to think or to analyze. A case for constitutional trespass has plainly been made. The laws creating mandatory minimums need to be changed, if not by the legislators, then by the appellate courts.

However, in other offenses where a court is permitted to deviate from the guidelines, if extra effort on the record is applied, judicial discretion has not been usurped. Trial judges are free to think, analyze and sentence independently. In fact, such discretion has been applied ten percent of the time. The needs for conformity in sentencing and for having counsel able to advise in the know are compelling needs that provide support for the guidelines.

No constitutional trespass has been proven with respect to the guidelines, and, in fact, their elimination will only make defense counsel’s job more difficult, eroding their ability to be effective at a critical stage of the criminal justice system. Having effective counsel is the constitutional right this writer finds to be of paramount concern. A defense counsel forced to do “horse trading” in the dark during plea bargaining faces the risk of later being found ineffective, and that is the constitutional trespass which should concern us.

So, even though the book was written with much passion and personal commitment, it is not a home run. Nevertheless, the Fleetwood High alumnus has managed to bat .500. Even Ted Williams would be envious.


CounTeR-PoInT

Sentencing Guidelines are the Real Cause of Prison overcrowding and Must GoBy The Honorable Jeffrey K. Sprecher

Donald F. Smith, Jr., Esquire, Executive Director of the Berks County Bar Association, has written a critique of my book, Justice or Just This? A Constitutional Trespass. Consistent with his reputation as the best law clerk the late Judge W. Richard Eshelman claimed to have ever employed, his critique is thorough, analytical, and very well written. I know he has “good stuff ” and is capable of pitching a perfect game. He’s fair but a strong competitor. His critique includes both “high hard ones” as well as darting, off-speed pitches. But he’s a good sport so I believe I can hang in there and avoid stepping into the bucket on his delivery, even if he has given me some chin music.

Thirty Years of Controlled Sentencing Prison over population has resulted in a 1,900% increase in the annual budget of the Department of Corrections from 1980 to 2010. With the new prisons about to open and renovations currently being conducted on several existing prisons, Pennsylvania’s prison population will increase by over 9,000 by the end of 2014.

Despite what many people have claimed, the radical increase was not created by mandatory minimum sentences. Mandatory minimum sentences are the most egregious miscarriages of justice but they alone have not caused the increase. Approximate 1,500 mandatory minimum sentences are imposed each year in Pennsylvania. That’s less than 2% of all sentences annually in Pennsylvania. This prison population increase has been caused by the establishment of the Pennsylvania Commission on Sentencing and here is why:

1) Eleven state prisons were built and operated (and in some cases closed) in the first 160 year history of state corrections in Pennsylvania prior to the law creating the Pennsylvania Commission on Sentencing becoming effective in 1982.

2) Before passage, the legislature commissioned a study to tell it what the impact would be of the Sentencing Commission law going into effect, along with some additional mandatory minimum sentences. The study concluded that the length of minimum sentences will double. It is important to note that if a minimum sentence doubles, the maximum sentence must also at least double because the minimum may not exceed 50% of the maximum term of incarceration.

3) Sure enough two years later (1984) an unprecedented state prison construction epidemic started. More prisons were constructed in the next 14 years (16 prisons) than in our previous 160 year history.

Guidelines to Gospel As a result, sentences are decided by an 11 member committee, without any individual knowledge or experience of the case. This grading of offenses by point value occurs months and years before the sentencing hearing.

The Pennsylvania Commission on Sentencing each year in its annual report proudly reports that Pennsylvania judges sentence 90% consistent with the guideline ranges. This affects 90,000 sentences each year because at least 97% of all criminal cases are not decided by trial but by guilty plea, both open and negotiated. And even in the few cases that are sentenced as a result of an open guilty plea, the judge still follows the guidelines in nearly every case. Who does the sentencing?

District attorneys throughout the state negotiated guilty pleas consistent with the guidelines. I have heard judges from other counties declare openly that they told their district attorney, “If you bring me a guilty plea within the guidelines, I’ll accept it.” Everyone in the system, including the defendant (especially in public defender cases) knows it, expects it, accepts it, and thus authorizes it. And judges follow it.

Our esteemed colleague points out that judges do not have to follow the guidelines. But, sadly, it’s much easier and faster to do so. It’s also noncontroversial, and most importantly the sentencing judge, when she sentences below the guidelines is exposing herself to the likelihood of a full blown appeal. Experience has shown that in the past, far too often the judge may be reversed and the case remanded for resentence. As Mr. Smith points out, no judge wants to be known as “being the ‘softest’ on crime.” The sentencing judge is exposing himself to public criticism and a newspaper story after sentencing when the appeal is filed and at resentencing when the case is remanded. Can there be any better reason to follow the guidelines 90% of the time?

When everyone, including the victim, his family, and witnesses stand before the court and support a specific sentence in a case that has taken many months to resolve, the sentencing judge would place himself in the very difficult position of telling everyone the negotiations were for naught, the negotiated guilty plea offer is denied and the case is forced to go to trial. This is particularly painful to the judge if the plea is denied because it involved too much jail time.

Fair Ball I respectfully conclude that the "constitution umpire" will find the need for disbanding the Pennsylvania Commission on Sentencing fair not foul.


Spotlight on new Members Abraham J. Cepeda is with Community Justice Project and is staffing its new Reading office. He has been with CJP since his first year at Widener University School of Law and spent a summer internship with HIAS where he was trained in immigration law. Abraham is the only immigration lawyer working in any of the Pennsylvania legal services programs. His undergraduate degree is from East Stroudsburg University. He cites music, chess and football as his hobbies.

Ryan C. Thompson is the newest associate at Hartman Shurr, and his practice areas

include creditor rights, banking, bankruptcy, administrative law and

civil litigation. Another graduate of Villanova University School

of Law, Ryan is an alumnus of Hillsdale College. His hobbies

include running, reading, cooking and history. Before coming to

Berks County, Ryan had worked at Petrille Wind in Doylestown.

Also recently joining MidPenn Legal Services as a staff attorney is nolan B. Meeks. A graduate of Cheyney University and the Dickinson School of Law, Nolan’s areas of practice at MidPenn include unemployment compensation, custody, consumer and housing. His hobbies are riding motorcycle and playing basketball. Nolan has one child, Alani, 3 years old.

Coming from the Law Offices of Women in Need in Chambersburg,

PA, Maureen Belluscio has joined the Reading office of

MidPenn Legal Services. Her practice focuses on custody, public

benefits and PFA matters. She is a graduate of New York University

and the Villanova University School of Law.

Starting with Liberty Law Group, LLC, in January has been Tyler B.

Christ, a graduate of Millersville University and Widener University

School of Law, where he was a staff member of the Widener Law

Journal. His practice includes work in the areas of personal

injury, business, family and Social Security. While in law school,

Tyler interned for two summers with AFSCME Council 13 in

Harrisburg. Currently, in addition to his practice, he is a freelance content writer for LexisNexis.

The current Villanova law grad serving as Judge Parisi’s law clerk is Melissa Towsey. Her undergraduate years were spent at the University of Virginia where she had a double major, foreign affairs and sociology. Before going to law school Melissa worked as a paralegal for Washington, DC law firms. She enjoys volunteer work, especially with animal rescue organizations, and reading or listening to books by Michael Connelly, Dean Koontz and Stephen King. Melissa is a big fan of baking cupcakes!

By Donald F. Smith, Jr., Esquire


Docket

eric J. Taylor married Terrie A. Freeman on November 11, 2011. The groomsmen provided a bike for the trip from the church in West Reading to the Inn at Reading. Fortunately, a limo was there for back-up. Eric is an Assistant Public Defender and Assistant Editor of the Berks County Law Journal.

What a way to bring in the New Year! Carl J. engleman, Jr. and Melissa Glaser were married on December 31, 2011.

This past winter Madelyn S. Fudeman, chair of the BCBA’s ADR Committee, was named to the board of directors for Prospectus Berco. Madelyn is a partner at Essig, Valeriano & Fudeman, P.C.

The Community Prevention Partnership celebrated its 20th anniversary by recognizing ten people who had been instrumental in helping the agency. Those recognized included Senior Judge Arthur e. Grim.


Adding to their family, Mahlon J. Boyer and wife Brittany welcomed Bennett Michael into this world on March 28. He joins his 2-year-old brother, Alexander. Mahlon is co-chair of the BCBA’s Entertainment Committee and is with Bingaman Hess.

ellen M. and Daniel B. Huyett were recently honored by the Caron Treatment Centers’ Board of Trustees, receiving the Richard J. Caron Award of Excellence. Ellen is a retired attorney but very involved in community activities, and Dan, a past president of the BCBA, is co-chair of the Litigation Group at Stevens & Lee.

Jennifer R. Alderfer gave birth to daughter Jessica on March 8. For now, Jennifer is taking a break from the practice of law.


Chapter XVI - LycanthropusBy Serjeant Buzfuz

Back story: Sly Talbott, henchman of Clem MacDougall, Esquire, has consumed under duress a concoction brewed by Mountain Annie, a disciple of Baba Yaga, the Witch of Great Russia. The potion has transformed him into Oborotyen, a man who assumes the characteristics of a wolf at the full of the moon. The scene is after dark in Excelsior City; the moon is waning – two days past full...

THE FIRST things that struck him were the smells – struck him in the way a flash of sustained lightning at midnight assaults the eyes and leaves a half-remembered field of ghostly afterimages. Things perhaps perceived and perhaps not. Oh, his eyesight was quite keen, too, even in the dark.

But the smells!

Urine, mostly. Urine and musk – a potpourri of scents and odors and aromas as varied and distinctive as genetic codes. Every surface, every tree trunk,every bush, every signpost and, of course, every fireplug declared its own unique roll call of recent and not-so-recent visitors, each of whom had claimed dominance and ownership and warned away all others.

The lone wolf lifted his right rear leg and anointed the left front tire of a lime-green Chevy Vega. A vague synaptic impulse in his lupine brain told him this round black evil-smelling thing somehow belonged to him alone. His tongue lolled out one side of his mouth and a strand of saliva slobbered to the pavement. He performed the same ceremony on the left rear tire of the Vega and then on a nearby tree trunk redolent mostly of rottweiler and pit bull, but with a nuance of shih tzu.

The moon was two days past full; the wolf felt its influence waning, but he raised his muzzle to the sky and howled again anyway. His eyes glowed like dying embers as his voice ululated and then faded away in a long melancholy decrescendo, echoing off the empty-faced brick buildings lining the street.

“Shaddap, ya stinkin’ mutt!” A brick whizzed over the wolf ’s head,bounced off the hood of the Vega and landed with a clunk in the litter-strewn street. The wolf looked up and saw the fat bald-headed figure of some two-legged creature silhouetted in the light of a window above the fire escape. “Shaddup, damn ya,” it said. “One more squeak outta you and I start shootin’.”

The wolf, of course, had no idea what this unfriendly-sounding creature was saying, but he understood the tone and sensed the meaning. The wolf was hunting alone, and the instinct for self-preservation in this instance overshadowed the instinct to leap and attack and rip skin and tear flesh. He tucked his tail between his legs and slunked down a fetid alley between two squalid buildings, pausing now and then to sniff and squirt.

As he prowled the streets and alleys, an image filled his mind:

A herd of two-legged creatures crossing an arctic tundra, two-legged hairless creatures in all sizes, males and females and young. A pack of wolves in the distance, following, watching, watching, watching....

One of the two-leggers now falling behind, not keeping up. In some kind of distress. Stumbling. Weak? Vulnerable? A man, a human, a big one, with a shock of white hair, falling behind. Farther and farther behind. His hindquarters seem to be smoking. What could this be? The man flails at his smoking britches and dances about as if possessed by demons; his yips and yelps of pain and fear vanish unheeded into the wilderness. Now his hindquarters are in flames. The herd moves on without him.

Fearing the fire, the wolves keep their distance. They lick their chops, for food has been scarce this season, but they are cautious creatures and keep their distance. The scent of searing flesh is almost unbearable.

The wolf made a low guttural sound in his throat and saliva soaked his fangs. Sensing the approach of dawn, he found shelter and lay down hungry.

***

SLY TALBOTT awoke, with a thundering headache, inside a discarded stove crate between two trash cans in an alley not far from his apartment. He wasn’t wearing a stitch of clothing and his mouth tasted like the floor of a meat-packing plant. He belched up bile and realized he was about as hungry as he could remember ever having been.

He stood up quickly and nearly fell back down in a heap at the wave of dizziness which passed over him. He had no idea how long he’d slept or how he happened to be lying in the alley buck naked. In a fit of modesty, he wrapped his delicate regions in the remains of a discarded booze carton, and picked his tenderfooted way gingerly back to where he’d parked the Vega. He figured he might find his pants there, for one thing, his wallet and the keys to his apartment for another.

BarristerBuffoon


He found his pants, all right. His wallet was gone and his keys he saw in the ignition of the Vega – which was locked. In passing, he noted a big new dent in the hood.

This stinkin’ neighborhood, he thought. I gotta move outta this dump. Real low class o’ people livin’ in this stinkin’ neighborhood.

Being locked out of his apartment was not a new experience for Sly Talbott. He crept around the side of the building, glanced about him carefully, slipped his pants back on – for some reason the crotch seam was almost completely torn out –and pulled down the fire escape ladder. In ten seconds he was letting himself in at the bathroom window.

He flopped across the windowsill onto the floor, struggled to his feet and rummaged in the medicine cabinet until he found a bottle of aspirin among the old razor blades, stiffened corpses of toothpaste tubes and unused bottles of cologne and sticks of deodorant. He gulped four tablets, then ran water from the tap into his mouth to wash them down. His head throbbed.

While he waited for the aspirin to kick in, Talbott wandered into the kitchen. He groaned at the sight of clotted Boy-Ar-Dee spaghetti sauce and desiccated strands of pasta caked on top of the gas stove and on the greasy pots and pans in the sink. Fat bluebottle flies made a contented hum as they buzzed lazily over the surfaces and swarmed about the overflowing trash can in the corner by the door. Talbott was hungry as hell; for some reason the stench only made him hungrier.

Funny. Joint smells like a garbage dump on a hot day, and I’m lovin’ it. Almost makes me wanna go roll in something stinky. Look it them flies! Why should they have all the fun?

He yanked open a cabinet and found a bottle of whiskey of some kind; it didn’t have a label and he’d forgotten when and where he got it.

Ah, what the hell? Hooch is hooch. Any port in a storm.

He pulled the cork with his teeth, spat it on the counter and took a long, meditative swallow. Then he took another. And yet another. Now the headache was releasing its grip, and he sighed with something like relief. He found a carton containing the remains of some nondescript Chinese take-out in the refrigerator, scraped off a layer of mold and shoveled the rest of it down in four big bites with a spoon he retrieved from the sink. He chased it with another snort from the bottle.

Now, with another sigh of satisfaction, he lurched into the next room and flopped

down on the straw-tick mattress that served him as a bed. Just before drifting off to sleep, he made a mental note to take a coat-hanger to his car, retrieve the keys and get over to MacDougall’s place. He was asleep before he could think why he wanted so badly to get over to MacDougall’s place.

He dreamt of a man dancing about with his pants on fire. The dream was so vivid he could almost smell the burning flesh. As he slept, his mouth opened in a wide grin, the world’s ugliest tongue uncoiled like a serpent, and saliva trickled over the crusty pillowcase.

[Tae Be Continued…]

Editor's Note: Serjeant Buzfuz will answer to the name of Clemson N. Page, Jr.


Volunteer ReadersJana R. BarnettPatrick T. BarrettDavid R. BeaneG. Thompson Bell, IIIWilliam C. BispelsTimothy C. BittingSteven D. BuckTonya A. ButlerLaura E. CooperMichael D. DautrichOsmer S. DemingSusan N. DenaroCarol Anne Donohoe Daniel P. EmkeyLinda F. EpesEric J. FabrizioKevin FeeneyHonorable Richard E. FehlingAndrew F. FickBrian Forsyth Debra R. FranklinJulieane E. FryAndrew S. GeorgeRuth GalanosKathy Gees-LarueSusan GernertAmy Good-AshmanJennifer L. GrimesMichael K. HollingerVictoria S. HollisterEllen M. HuyettDylan JacobsScott N. JacobsJesse A. KammerdeinerRobert D. KatzenmoyerAllan R. Kauffman

Christin L. Kochel Jill Gehman KoestelLeRoy G. LevanChad D. LubasJacqueline R. MarkLauren Applegate MarksMichelle R. MayfieldElizabeth D. McMunigalJoel H. MerowKenneth MillmanKeith MooneyKenneth C. MyersDaniel C. Nevins Jennifer L. NevinsScott C. PainterJames M. PolyakDouglas P. RauchAnthony B. Rearden, IIIMichael J. RestrepoWilliam R. A. RushJill M. ScheidtPeter F. SchuchmanLatisha SchuenemannMatthew M. SetleyGregory A. ShantzLouis M. Shucker Lisa A. SicilianoDonald F. Smith, Jr.James M. SnyderDeborah A. SottosantiHonorable Jeffrey K. SprecherHonorable Albert A. StalloneRyan C. Thompson Jason A. UlrichMilton VelezPamela VanFossenBrett Wartluft

Terry D. Weiler Valerie WestMichael G. Wolfe Mark E. Zimmer

Financial ContributorsFrances AikenJennifer and Jason AlderferPatrick and Paula BarrettRichard A. BausherMarcia A. BinderEden R. Bucher Steven and Nancy Buck Connors Investor ServicesKaren and Ralph Cook Laura E. Cooper Pamela A. DeMartino Osmer S. DemingDiane P. Ellis Daniel P. EmkeyLinda F. EpesKevinFeeneyHonorable Richard E. FehlingSusan E. B. Frankowski Georgeadis SetleyJames GilmartinMr. and Mrs. Barry GroebelHartman Shurr Daniel and Ellen HuyettJoanne M. JudgeRobert D. KatzenmoyerHonorable Scott D. KellerLeisawitz Heller Abramowitch Phillips, P.C.Kim L. LengertLeRoy G. LevanHonorable Stephen B. Lieberman Howard and JoAnn Lightman

Joan E. London Honorable Linda K.M. LudgateHeidi B. MasanoMiller Law Group, PLLCMr. and Mrs. Kenneth MillmanRobert L. Moore James H. MurrayKenneth C. MyersJennifer and Daniel NevinsMr. and Mrs. Michael NoonScott C. PainterJesse L. PleetJames M. PolyakRabenold Koestel ScheidtMichael J. RestrepoWilliam and Jean RobertsJames S. Rothstein William R. A. RushBetty Jane SchaferPeter and Mary SchuchmanSharon M. ScullinLisa A. SicilianoJames and Kathy SnyderSodomsky & NigriniDeborah A. SottosantiHonorable Jeffrey K. SprecherJohn M. StottPaula and Stanley SzortykaHonorable Mary Ann UllmanMilton VelezBrett WartluftTerry and Patricia WeilerMichael G. WolfeHonorable George C. YatronGregory R. Young

BooK ‘eMWho is Rewarded More? The Children Receiving a Book or the Reader Seeing the Joy?

Once again this spring the Law Foundation of Berks County provided almost three thousand books to the students in the Reading School District’s pre-kindergarten and kindergarten classes. During one week in March, attorneys and friends of the Foundation read to 89 classes and provided a copy of the book to each student. The reaction of the students is always most heartwarming. However, the true reward is shared by those who read and those who financially contribute. Thanks to the following:

Andrew F. FickPam VanFossen


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Engaging in Dialogue with Public OfficialsThe Governmental Affairs Committee is again hosting Roundtables as a forum for BCBA members to engage in dialogue with public officials over lunch. Reading Mayor Vaughn Spencer was the first to break bread with bar members in 2012. Our guest in March was Senator David Argall.

1: Meeting in the Batdorf Room (L-R): Senator Argall, Governmental Affairs Co-Chair Jim Smith, Kurt Althouse, Craig Hirneisen and Alisa Hobart

2: Sharing his vision for the City of Reading, Mayor Spencer with Governmental Affairs Co-Chair Mark Yoder

Local Firm Recognized as Charter Member of PBA’s PLUS ProgramBEANE LLC, a Berks County based boutique law practice dedicated exclusively to the practice of environmental, energy and sustainability law, has been recognized as a charter member of the Pennsylvania Lawyers United for Sustainability or PLUS program. The firm's principal is David R. Beane, Esquire (left).

The PLUS program was developed in 2009 by the Environmental and Energy Law Section of

the Pennsylvania Bar Association (“PBA”) and approved by PBA’s House of Delegates in 2010. Modeled after similar initiatives by bar associations in other states, PLUS is a voluntary, self-monitored program designed to make law practices more environmentally sustainable.

Program guidelines were developed with input from PBA’s Law Practice Management Office. The guidelines offer suggestions and provide specific examples on how to make law practices more environmentally sustainable. The guidelines cover five core areas: energy conservation; paper reduction; recycling and waste reduction; travel and commuting; and purchasing. Examples of sustainable law office practices include:

• Using paper, file folders, envelopes and legal pads with a minimum of 30% post-consumer recycled content

• Using Energy Star rated office equipment and appliances

• Pre-setting copiers and printers with a default duplex command

• Using email to send correspondence and documents when feasible

• Scanning and storing documents electronically

• Refraining from printing emails and instead storing them electronically

• Transitioning to a paperless billing system

• Ensuring that all work stations have recycling bins

• Recycling both traditional recyclables such as bottles, cans, paper, cardboard and old ink cartridges and non-traditional recyclables including Tyvek envelopes, batteries, plastic bags, CFLs and computers

• Reducing the need for business travel through teleconferencing as a substitute for in-person meetings

• Turning-off computers at the end of each day and placing computers and copiers in stand-by mode when not in use during work hours

• Substituting inefficient, older light bulbs with compact fluorescent light (CFL) or light emitting diode (LED) bulbs

• Providing pitchers with filtered water instead of bottled water

• Reusing supplies such as binders, file folders and large envelopes

• Creating note pads from used one-sided paper

• Using ceramic mugs and dishes instead of styrofoam (if not feasible, then using biodegradable, compostable plates and cups instead of plastic or styrofoam)

Under PLUS, participating attorneys and law firms complete an annual pledge form demonstrating their commitment to the program’s sustainability goals.

Participation in programs like PLUS not only allow firms to demonstrate their commitment to sustainable practices, but can also help firms increase their profitability by operating more efficiently and productively. Sustainability programs also help align law firms with the growing number of current and potential clients who are embracing sustainable practices and demanding that their service providers exhibit a similar commitment.

Links to the PLUS program guidelines and pledge form can be found at the Environmental and Energy Law Section page of PBA’s website at www.pabar.org.


Frederick J. Giorgi

Frederick J. Giorgi, 81, passed away on February 18, 2012. Mr. Giorgi graduated from Reading Central Catholic High

School in 1948, from Villanova University with a B.S. in Pre-Law/Accounting in 1952 and then with his law degree from the Dickinson School of Law in 1955. Mr. Giorgi received the Honorary Degree of Doctor of Laws from Dickinson School of Law in 1999. Mr. Giorgi was a veteran of the U.S. Navy, serving from 1956-1957. Mr. Giorgi entered the public practice of law in 1958 as a founding partner of the firm of Austin, Boland, Connor & Giorgi. Mr. Giorgi left the practice of law in 1975, but remained “Of Counsel” with the firm. In 1958, in conjunction with practicing law, Mr. Giorgi also entered work with the family business, Giorgio Foods, Inc. At his death, Mr. Giorgi was the Chairman of F&P Holding Company which had subsidiaries of Giorgio Foods, Inc., Giorgi Mushroom Co., Can Corporation of America, Maidencreek Plaza Co., and other companies in Poland, the U.K., Russia, Ukraine, India, UAE, Spain, France, Morocco, Romania, Czech Republic, Slovakia, Turkey and Brazil. Mr. Giorgi received numerous awards during his lifetime, including, the Career Achievement Award from the Dickinson School of Law in 1993, the Award of Merit from the Penn State University Department of Mushroom Science in 1996 and the 2005 Officer’s Cross of the Order of Merit by the President of the Republic of Poland for outstanding

contribution to the development of the Polish Economy. Mr. Giorgi was also awarded the 50-Year Membership Award by the Berks County Bar Association in June 2008. Mr. Giorgi was a lifelong member of the Holy Guardian Angel Roman Catholic Church in Hyde Park. Mr. Giorgi is survived by his son and daughter-in-law, Peter and Katherine, his former wife, Elaine Giorgi and his granddaughter, Isabella.

Ramesh J. Daphtary

Ramesh J. Daphtary, 81, passed away on February 25, 2012. Mr. Daphtary was a self-employed attorney for many years

prior to his retirement. Mr. Daphtary was an active member of the Berks County Bar Association. Mr. Daphtary is survived by his wife, Minakshi, his son and his daughter.

Joseph M.A. nelabovige

Joseph M.A. Nelabovige, 71, passed away on March 31, 2012. Mr. Nelabovige graduated

from Reading Central Catholic High School in 1958, from Fordham University with a B.S. in pharmacy in 1962 and then with his law degree from the University of Maryland School of Law in 1966. Mr. Nelabovige also held a Masters Degree in Catholic Theology from St. Charles Borremeo University. Mr. Nelabovige was a self-employed attorney in Hamburg from 1970 until his death. Mr.

Nelabovige was a devoted member of St. Mary’s Roman Catholic Church in Hamburg where he taught religious education for 13 years. Mr. Nelabovige is survived by his wife Margaret, his daughters Mary Jo Nelabovige and Nicole Kirst, and three grandchildren.

David McCanney

David McCanney, 51, passed away on April 23, 2012. Mr. McCanney graduated from Haverford High School in 1978, the

University of Scranton in 1982, St. Joseph’s University in 1986 and Widener University School of Law in 1993. Over his career, Mr. McCanney was employed by American Bank/Meridian Bank, Wilmington Trust Company and finally Stevens & Lee/Griffin Financial Group, where worked from 1994 until his death. Mr. McCanney was a member of the Turnaround Management Association, the American Bankruptcy Institute and the Berks County Bar Association. Mr. McCanney was very involved in the community, including service as: board member of the Olivet Boys & Girls Club, past president and coach of the Wilson Jr. Soccer Club, member of the Wilson Lacrosse Club, head coach of the Wilson High School Girls Lacrosse team for 4 years and player for the Wyomissing Kickers Soccer Club. Mr. McCanney loved coaching youth sports, playing soccer and vacationing with his family in Ocean City, NJ. Mr. McCanney is survived by his wife, Allison, his son William and his daughters, Laura and Lindsay.

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Barrister Spring 2012

Documents

Transcript of Barrister Spring 2012