JudgeAckerman,JudgeOberto describe one’s life ambition and more than twelve years of concluded...

THE NEWSLETTER OF THEWESTMORELAND BAR ASSOCIATION

VOLUME XXI, NUMBER 6DECEMBER 2009

INTHISISSUE

thesidebar

2 15 JuryTrialVerdicts11Spotlight

on DominicCiarimboli 13 To-Wit:

by S.Sponte3 In Memoriam

Gerald J.Yanity 5Briefly

SpeakingPresident’sMessage

Jurists Retiring from Bench

Reflections on the Careers ofJudge Ackerman, Judge Ober

AGLANCE BACK

by The Hon. Daniel J. Ackerman

I’m at an intersection waiting forthe light to change. It seems like aparticularly long light, so I have time

to adjust the volume on the radio and toglance in the rearview mirror to see what’sbehind me. As a judge, it has been mypractice and advice to others not to lookback. Make a decision and move on.Don’t worry about where a differentinterpretation might have led.

But as I wait for this light, I have the luxury of glancingback over the three decades in line behind me and to sharewith you in generalities what I see. It is best that I notbe specific. This is not meant to be a memoir. I have had,and will have, other occasions to thank my courthousefamily and the many lawyers and judges who have mademy time on the bench more fulfilling than it otherwisemight have been. I hope that over the years I have conveyedthe impression that I am a man who enjoys his work, forI have, and I fully realize that this is not always true. Butcontrary to what some would think, it is not an easy job;it is generally less stressful than being a lawyer, but it is notwithout its struggles and an occasional sleepless night.

I came to the bench from a generation of lawyers whoknew that there was no copying machine in the courthouseand that the transfer of public information into privatedocuments required a legal pad and a pencil and a secretarywho had the courage to type an original and four carbon

FIXED CHANGE

by The Hon. William J. Ober

A phone call came to my chambersfrom my fellow retiring-colleague,Dan Ackerman. He informed

me that the sidebar editors would like eachof us to write 1,000 words about our timeon the bench. There it was: a challenginggauntlet that I be frank, terse, duly modest,candid, appreciative, and yet, use nocitations.

A thousand words seem hardly adequateto describe one’s life ambition and more than twelve yearsof concluded service. In my more pensive moods, I mightreflect that Justice Felix Frankfurter has been an influence.I know much less about him than such allegiance wouldvalidly demand, but what I think I know is enough tohumble me. Among his quotations that I carry with meis the following: “Great laws covering judicial institutions,unlike great poems, are not written for all time.”

Having seen our system of law and its courts from theeyes of a practitioner for over 32 years, and then moving toa view from its judiciary, I have formed some clear and, Ihope, valid impressions. The most prominent among theseis that we in the law are all, to some extent or another,idealists. We believe in a system that endeavors to deal withmembers of our society who have needs (or, in some cases,wants) that are beyond their ken or ability to address. Inmany cases, these needs can be met only by the resources ofour social compact, such as defense against our enemies—

�

The Hon. Daniel J.Ackerman

�

The Hon. William J.Ober

continued on page 9continued on page 6

Editor’s note: The Hon. Daniel J. Ackerman and The Hon.William J. Ober are retiring from the Court of Common Pleas ofWestmoreland County at the end of this month after 29 and 12 years on the bench, respectively. We asked them to share theirthoughts on their respective careers.

The CASA program (CourtAppointed Special Advocates)has been around for many

years in Allegheny County and inother counties throughout the country.Thanks to the vision and hard work

of Judge Feliciani, wenow have a CASAprogram here inWestmorelandCounty and the WBAboard is one of itsstrong supporters.Take a few momentsto learn more aboutCASA and you willsee that this is a pro-

gram where the legal community canmake a real impact in our community.

CASA of Westmoreland, Inc.,opened its doors in 2006 as a non-profit organization providing advocacyfor the most vulnerable members ofWestmoreland County—abusedand/or neglected children. The volun-teers of the CASA program are trainedand supervised to provide recommen-dations to the judges in our familycourts. CASAs choose to devote theirtime, despite not receiving financialcompensation for their dedication.CASAs work to ensure the safetyand stability of children as theyprogress through the court system,while collaborating with a variety ofservice providers to ensure childrenare quickly placed in safe, permanent,nurturing homes. These CASAsprovide a child’s voice in court.

Through collaboration withindividuals involved in a child’s case,a CASA often learns vital informationregarding a child’s situation, which isthen shared with the child’s caseworker through the WestmorelandCounty Children’s Bureau (WCCB).Throughout their time on a case,CASAs also advocate for a variety ofservices to assist with permanency.This can take place through formal

2 • sidebar DECEMBER 2009

President’s Message

CASAGives Children a Voiceby James R. Antoniono, Esq.

recommendation in court hearings,or through collaboration with caseworkers and service providers.

By developing a rapport of trustwith the child, CASAs learn thechild’s hopes, wishes, and fears. CASAvolunteers strive to make sure that thecourt and adults are made aware ofthe child’s view. The ability to be heardis very important to children who areinvolved in the legal system, who oftenhave a feeling of being powerless. Thisimpact is evident in the case of “John.”

Seven-year-old “John” had alreadyspent two years in the foster caresystem when a CASA volunteer wasassigned in 2008. Part of the difficultyin establishing permanencyfor John came fromhis reluctance to talkabout his concerns andexperiences.

Over time, the CASAvolunteer developed a goodrapport with John, and Johnbegan to trust the CASA. Asthe time of the next hearinggrew close, the CASA asked Johnsome questions regarding what Johnwanted in terms of permanency andvisitation with his parents. Johninformed the CASA that he did notwant visits with his father to increase;he did not see the point. John knewand stated that he did not want togo home, that he did not feel safearound his father, and did not trusthis mother to protect him. The CASAknew John’s wishes would have to bevoiced to the court.

During the hearing, it was recom-mended that visits between John andhis father be increased. Keeping hisword to John to make his feelingsknown to the court, the CASA raisedhis hand. The CASA stated thatalthough increased visits betweenJohn and his father may not cause anyharm, it was the CASA’s opinion thatit would not serve any benefit to John

either. The CASA further explainedthat this child, who had been afraidto voice his feelings in the past, hadvoiced his feelings in this regard,and did not wish to have increasedvisitation. The CASA was concernedthat there could be potential damagedone by John’s feelings not beingrespected yet again.

The judge decided to accept theCASA’s recommendation, and did notincrease visitation. In the weeks thatfollowed, John became more openwith the CASA. John’s behaviors in hisfoster home improved. John now feltsafe to express himself, and stated thathe wanted to pursue adoption. After

two years in the system, Johnhad finally found his voice,and he was not afraid touse it.

This story is just oneof many examples of how

CASAs have been a voice forchildren here in WestmorelandCounty, and while volunteersmake up the heart and soul ofCASA, there are many things

that individuals can do to help.We can support CASA of

Westmoreland, Inc., through financialcontributions, by spreading theword of CASA in our community, byrecommending CASA referrals to cases,and by donating our time or expertisein areas of technology, legal or officeassistance, public relations activities,etc. Not everyone can be a CASAvolunteer, but everyone can assist CASAin providing the advocacy which has alife-long impact on the lives of children.

To find out more about CASA, orlearn how to be a powerful voice ina child’s life, contact their office at724-850-6874 or visit their website:www.co.westmoreland.pa.us/CASA. �

DECEMBER 2009 sidebar • 3

Remembering Gerald J. Yanity

the sidebar is published bimonthly as a service for members of theWestmoreland Bar Association. Letters to the Editor should be sentc/o WBA, 129 North Pennsylvania Avenue, Greensburg, PA 15601-

2311, fax 724-834-6855, or e-mail [email protected]. the sidebar welcomes unsolicitedsubmissions from members or non-members. Please submit to the Articles Editor, c/o WBA.Back issues from 2000 to the present and a comprehensive, searchable index are availableonline at www.westbar.org/thesidebar.

EDITORIAL BOARDDavid J. Millstein, Esq., EditorBeth Orbison, Esq., Assistant EditorThe Hon. Daniel J. Ackerman,Elevator Operator Trainee

Susan C. Zellner, Associate EditorDiane Krivoniak, Managing Editor

thesidebar

by Gerald W. Yanity, Esq.

The Westmoreland BarAssociation is fortunate thatin an era when law firms have

come to resemble big businesses, ourorganization is still blessed with morethan its share of law firms that arecomprised of multiple generationsof one family. I had the honorof practicing law with my father,Gerald J. Yanity, for 14 years. He wasa great teacher in the art and science ofpracticing law, but as my father, he wasable to teach me much more than anyother professional mentor could have.He never forgot that we as lawyers arehere to serve others. This is a lessonmost parents try to teach their childrenin their youth, and I was fortunate tonot only learn this from him as achild, but to see it acted out every dayin our practice.

When I was still a preschooler, myfather was working his way throughDuquesne Law School, where hegraduated in 1975. He would workall day as a music teacher, then makethe hour-long ride from our homein Unity Township to the Duquesnecampus in Pittsburgh. On theweekends, when the rest of his nightschool classmates were no doubt catch-ing up on their coursework, Dad wasbusy with his US Army Reserve duties,as well as numerous band jobs and

My father taught me to practice lawas he did; to treat every client withrespect, to complete even the mostroutine matters with great care, andto serve those who are less fortunate.Even in the midst of preparing for ajury trial or coordinating a complextransaction, Dad found time to driveto a nursing home or hospital to makea Will or just talk with a client whocould not possibly come to the office.

My father was the consummateprofessional. He rarely lost his cool,even under some very trying circum-stances. During the final months ofhis life, he would frequently spend hismornings receiving chemotherapy, andhis afternoons in the office meetingwith clients. After he passed away, Iwas moved and amazed by the numberof clients who told me they neverknew he was ill. He was blessed withgreat patience. He could listen toclients talk (and often complain)about some trifling problem, nevergiving them any sign that he was inthe battle of his life.

Gerald J. Yanity truly loved thepractice of law. He, like most of us,had worked many jobs in his life, butlaw was his one and only profession.He will be sadly missed. �

�

Gerald W. Yanity and Gerald J. Yanity

Editor’s note: Gerald J. Yanity passed away on August 12, 2009. He is survived byhis wife, Kathleen; two children, Gerald W. Yanity, with whom he shared his lawpractice, and wife, Kathleen A., of Greensburg, and Jeralyn Brown and husband,Stephen, of North Huntingdon; a granddaughter, Abrielle Brown; a brother, Gene,and wife, Mary Ann, of Crabtree; parents-in-law, Andrew and Frances Palko,of Greensburg; a brother-in-law, Bill Palko, and wife, Sylvia, of Maryland;a sister-in-law, Winifred Yanity, of Greensburg; several nieces and nephewsand two “angel helpers,” Mary and Marian.

music lessons. I have never seen anyonework as hard as he did during thistime, and I try to remember this everytime I complain about having to worka little late. Yet, at the same time, hewas always there for my Mom, mysister, and me.

Growing up, he made me feel likea part of his law practice. I can recallmany evenings when, after dinner, hewould return to the office for an houror two to catch up. I was often withhim, school bag in tow, doing myhomework in his law library. Evenas a grade-schooler, he taught meto appreciate the value of quiettime in the library, hard work, andaccomplishing goals. A job well doneby both of us usually meant an icecream cone or hitting a bucket of golfballs at the driving range on the wayhome. Hard work was never withoutits rewards, and there was alwaysplenty of time for fun, too.

I was in my third year of lawschool at Duquesne and a summerassociate in Pittsburgh when Dad’slaw partner of 20 years, WBA-memberHarold A. (“Sandy”) Stewart passedaway. I had always thought thatI would work for a while in the“big city” before coming back toWestmoreland County, but theopportunity to start my practicewith my father and learn from himwas one that I could not pass up.

Harry J. SchmidtL icensed Pr ivateI n v e s t i g a t o r

Bonded – Insured

Greensburg, PA 15601

Phone: 724-838-0644Fax: 724-838-0832


by Michael V. Quatrini, Esq., andL. Anthony Bompiani, Esq.

On the heels of the new WBAwebsite, the Young Lawyersand the WBA Technology

Committee are excited to formallyannounce the launch of the WBA Blogand Online Discussion Board.

The term “blog” (sometimesreferred to as a “blawg” in the legalworld) is short for “web log.” In itsmost simple form, a blog is an onlinespace, authored by one or more people,with regular entries or “posts.” Theseposts can include articles, observations,invitations to events, and othermaterial, such as photos or videos.

The WBA Blog was quietly startedin early 2008 as a casual informationspace for members of the bar. Sincethen, the Blog has collected legal andsomewhat legal-related content of allshapes and sizes. Recent examplesinclude:• The Jefferson Bottles: Fraud in the

World of High Priced Wine• Technology Tip: Internet Cookies

months. Adiscussion boardallows one memberto post a commentor question in asecure area. Othermembers may readthat comment/question, andrespond withtheir own remarksover time. Only

members will be allowed to postnon-case-related questions to the entirebar association and provide a forumfor answers and discussion. We envi-sion potential inquiries like, “Doesanyone use and like their Company Aphone system?”, “Does anyone have acontact at PennDOT in Harrisburg?”,or “Where does (let’s pick someonefunny) get those fashionable ties?” Thediscussion board will have defined userguidelines and, as with the Blog, theWBA will monitor and enforce theuser policy.

Coupled with the website, the newonline spaces give the WBA a height-ened online presence and provide anew level of information and interac-tion for the members. Please take thetime visit the Blog and, when it’sready, the discussion board. Moreimportantly, feel free to give us feed-back and e-mail us material when youthink it is appropriate for the Blog! �

—Good or Bad?• How a Solo

Gained MoreThan 600Facebook Fansfor HisFledgling Firm

• Tips for YoungLawyers: KeepYour RésuméHonestRegular posts

include articles from law-relatedwebsites, technology tips, legislativealerts, and reminders for WBA events.Comment sections, supervised by Blogauthors L. Anthony Bompiani andMichael V. Quatrini, offer readers aspace for observations on each particu-lar article. The Blog archives each postunder specific topic so users can easilyresearch past articles. Readers can alsoset up direct delivery of the Blog totheir Microsoft Outlook or InternetExplorer homepage.

In addition to the Blog, the WBAwill host an online, member-onlydiscussion board in the coming

WBA Takes a TechnologicalStep Forward…

Past speaker at the National Business Institute’s “Complex Bankruptcy Issues” seminar.

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Referring family law and criminal law matters,and certain contingent-fee cases.

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�

Anthony Bompiani and Michael Quatrini

BR I EF LYSPEAKING

me even further to advocate forpermanency for children,” saysMary Ann. �

Judge MarsiliReceivesAward ofDistinction

The Hon.Anthony G.Marsili was

honored with theFred Funari MHAAward of Distinctionat the 46th annualaward and dinnermeeting of MentalHealth America ofWestmoreland Countyheld October 28,2009, at Four Pointsby Sheraton in Greensburg.

The Fred Funari MHA Award ofDistinction was created in 1982 torecognize a volunteer who has madeoutstanding contributions on behalf ofindividuals with mental illness. FredFunari was an early force in the fightagainst mental illness and president ofMHAWC from 1965 to 1968.

Mental Health America ofWestmoreland County’s missionis to transform lives by promotingmental health, wellness and recoveryfor individuals, families, andcommunities through education,advocacy, and services. �


PetrilloHonored byCongress

The Congressional Coalitionon Adoption Institute awardedIrwin attorney Mary Ann

Petrillo with their prestigious Angels inAdoption Award at a gala event held inWashington, D.C., on September 30,2009. Mary Ann was nominated byCongressman Tim Murphy andSenator Arlen Specter for her lifelongcommitment to improving the livesof children through her advocacy ofadoption and foster care issues.

As an adoptive parent and adoptionattorney, Mary Ann has dedicated hertime and resources to the welfare ofdisplaced children. She currently servesas President of the Board of Directorsof CASA of Westmoreland, Inc., andis a member of the American Academyof Adoption Attorneys. In her 26 yearsof experience as an adoption attorney,Mary Ann has played a part in over1,000 adoptions.

“Because she has experienced adop-tions personally, she is able to providesupport to both adoptive and birthparents during the adoption process,”said Senator Specter. “Through herparticipation in adoption and fostercare organizations, Ms. Petrillo hasexhibited a commitment to improvingthe lives of children.”

“Ms. Mary Ann Petrillo has agenuine passion for helping children

find permanent homes and is trulydeserving of this Angels in Adoptionaward,” Congressman Murphy said.“Ms. Petrillo’s volunteer background asan educational speaker for continuinglegal education, adoption supportgroups, and child advocacy programshas made a significant impact for thefuture of families and children.”

While in Washington, Mary Annwas invited to speak with senators,representatives, and their staff who areengaged in foster-care and adoption-related legislation. Secretary of StateHillary Clinton met with the awardrecipients at the State Departmentto share the work her office doesto promote the adoption ofinternational orphans.

Another highlight of the trip forMary Ann was meeting LouisianaSenator Mary Landrieu, who wasan integral part of developing theAdoption and Safe Families Act, theChild Citizenship Act of 2000, andother legislation that has promotedpermanency for children.

Over 190 individuals from aroundthe nation were honored at the galaevent. “This journey was truly acareer high point which has energized

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Louisiana Senator Mary Landrieu andMary Ann Petrillo.

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The Hon. Anthony G.Marsili

THANK YOUThank you to the WBA, its officers, and membersfor your endorsement, support, and efforts onbehalf of our successful retention elections.

Judge BellJudge Marsili

THANK YOUThank you to the WBA, its officers, and membersfor your endorsement, support, and efforts onbehalf of our successful retention elections.

Judge BellJudge Marsili

The decrease injury trials is not alocal phenomenon.It is common inboth state andfederal courts. Andthe courts have hada hand in it. Therule requiringcertificates of meritin professionalnegligence actionshas brought amarked decline in malpractice filings,and it seems that judges are morewilling to dispose of cases on terminalpre-trial motions than in the past.Mediation and other forms ofalternative dispute resolution haveprovided an alternate route aroundtrials and have become appropriatelypopular. It is also true that theprospect of low or defense verdicts incivil court, and the threat of mandatorysentencing in criminal prosecutions,have had a chilling effect on taking acase before a jury of one’s peers.

On the civil side, the depressionin plaintiffs’ verdicts was, for a time,blamed on an advertising campaignmounted by the insurance industry.

That may have had some effect, butif advertising plays a role in juryattitudes, it is my guess that it arisesfrom attorney advertising, someexamples of which are particularly bad.Finally, the failure of some lawyers towisely discriminate when taking casesperpetuates the belief that goodverdicts for a plaintiff are unattainable.I believe juries return verdicts that areperceived as low because they often arepresented with flawed merchandise.That is to say, that the good cases,those with strong facts, settle out andthe juries are seeing cases beset withsubstantial factual problems.

Perhaps it is due to age (I ratherdoubt that), but it seems to me thatcases are becoming more complex.This complexity goes hand-in-handwith the rising cost of litigation. Tomake this argument, one need lookno further than discovery and expertwitnesses. In far too many cases,discovery is the principal battleground.Most lawyers have personal horrorstories of interminable interrogatoriesand ceaseless depositions.

It didn’t used to be that way;perhaps the bar cherished its own timemore then than it does now. And wemight ask, are the outcomes better, ormore just, now than they were then?The courts are not going to followGeneral Motors into bankruptcy, butif the courts and the legal professiondo not take steps to curb unnecessaryfilings and control costs they will findthemselves in a less relevant role.


copies without too many mistakes. Itwas a time before Westlaw when thelaw library was crowded with lawyerswhose own offices had no resourcesbeyond a set of Purdons. Out-of-county lawyers were considered fit topractice here only if they engaged local

counsel, and the openbar at the countryclub preceded theannual bar associationmeeting. It was a timewhen male jurorsarrived with a coatand tie.

The first thing onesees when lookingback is the immediatepast, replete withnotable change.

Undoubtedly, you have noticed areduction in jury trials, both civiland criminal, an increase in complexlitigation, and the rising costs andfrequent pro se parties. How youwould rate these changes on a slidingscale going from very bad to verygood is a matter of perspective. Someof these changes were driven by thecourt, some by the bar, and othersby the times.

Judge Ackerman: A Glance Back continued from page 1

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�

Judge Ackerman,1985

�

Judge Ackerman, surrounded by his staff, both past and present,at the 2009 Holiday Dinner Dance.

Now, even to my ear, this soundslike so much sermonizing, and if itdoes to you, I apologize. The road Ihave traveled to this intersection hasprovided some marvelous scenery,and the people I have met alongthe way—well, let me put it this way:where would you look to find a moreinteresting, and even entertaining,group than lawyers, judges, and thoseemployed in the courts? And over theyears I have come to appreciate theincreased effectiveness of our profes-sion when its members act in concertthrough organizations such as the barassociation, the bar foundation, theinn of court and thetrial academy. Theyplay a more impor-tant role today thanthey did thirty yearsago and we are allthe better for it.

Traffic on theintersecting road isbeginning to slow,so the light is aboutto change. While Ihave loved being alawyer and judge,at least most of thetime, and will missseeing you on aregular basis, I amready, and in fact anxious, to driveon down the road. In good weather,I understand the scenery there canbe beautiful as well, and my rodand waders are in the back justin case I see a good place to pulloff and fish. �


by The Hon. Joseph A. Hudock

Iam not absolutely certainabout this, but I believe thatJudge Ackerman is the first

Republican since Abraham Lincolnto win an election in WestmorelandCounty. Appointed to fill a vacancyin 1980, Judge Ackerman waselected to the position in 1981, andwas retained in 1991 and 2001.

He graduatedfrom the second-best law school inPittsburgh—Pitt,where he was aclassmate of DickGalloway. Danbegan the practiceof law as an assistantpublic defenderunder DanteBertani. He also had

a private office with Dick Gallowayand the late Father OrlandoProsperi. Under the tutelage ofDante and Orlando, Dan learnedtheir kamikaze method of criminaldefense, but he managed to avoidcontempt citations.

From the first day on the bench,Judge Ackerman made it clear thathe would be guided by nothing butthe law and the facts of the case.Obviously the lawyers came toappreciate this, and when he ran forretention in 1991, he received thehighest approval rating for any judgeup to that time from the membersof the bar association. (He is stilltrying to find out who the twopeople were who voted “no.”)

Every trial judge finds it amusingwhen television shows about courttrials have the witness collapsingin tears of submission after somebrilliant lawyer’s devastating cross-examination. It just doesn’t happenthat way, they say. Well, it did

happen to Judge Ackerman whenhe presided over a non-jury trial.A witness, who had testified to factsvery damaging to the defendant,suddenly was seized with pangs ofconscience on cross-examination,and blurted out, “I was lying whenI said all that.” The studious gaze ofJudge Ackerman obviously had theeffect of truth serum on the witness.

Dan Ackerman’s calm, seriousdemeanor masks a fine sense ofhumor. For years, he sent me lettersostensibly from a prisoner namedRicky Benbow. Mr. Benbowimplored me to grant him a fur-lough so he could see his girlfriend,so he could then ask for a maternityfurlough nine months later. When Iretired from the Superior Court, Ireceived a letter from Mr. Benbowcongratulating me and advising me:1) there was to be a Judge Hudockparty at the prison, and 2) he wasmaking another request for earlyparole.

Dan is one of the founding mem-bers of The Ned J. Nakles AmericanInn of Court, a highly successfulInn. When his pupilage group isscheduled to put on a program, Danhas several rehearsals to make certainthat the program is instructive andproperly done.

In his private life, Dan is a gentle-man farmer of sorts who dabbles inorchids, vegetables, and flowers.He is an avid trout fisherman whodelights in purchasing flies ratherthan tying his own, even though hehas the tools to do so. (Everyone isentitled to one quirk.)

He is married to a lovely woman,Becky, and they have two children,Reverend David Ackerman, aUnited Church of Christ Pastor,and Diane, who for many yearscreated websites on the Internet.

Ackerman Has Earned HisPlace In County History

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�

Judge Ackermanand his wife,Becky, at theCourthouseCentennial.

continued on page 8

One year at the annualBench/Bar Conference, thesong and dance troupe of the barassociation, The BarFlies, sang atribute to Judge Ackerman, whichended with the line, “... glory,glory, Hallelujah, Danny Boy willnever screw ya.” While this wassung with much levity, thethought expressed wasa sincere complimentto Judge Ackermanand a tribute to hisreputation for fairnessand integrity.

He received anotherfeather in his cap whenthe other judges on theWestmoreland CountyBench elected him tobe President Judge in 2002.

He had the foresight, asPresident Judge, to plan for aproper centennial celebration ofour beautiful courthouse in 2007,which included a hard cover,coffee table book.

Judge Ackerman has con-tributed greatly to the excellentreputation that the WestmorelandCounty Court enjoys throughoutwestern Pennsylvania. Over theyears, numerous lawyers fromother counties who come beforethis Court have made complimen-tary remarks about the Court.

In retirement, Judge Ackermanis looking forward to serviceas a Senior Judge throughoutPennsylvania while tendingto his orchids and buying histrout flies. He will be missed inWestmoreland County, but hisdistinguished record assures hisplace in Westmoreland Countyhistory. �

was employed in Pitt’s PersonnelDepartment. They have two children,David and Diane. David is anordained minister and pastor of St.Paul’s United Church of Christ inPleasant Unity. His wife, Marsha, is amath teacher at Ligonier Valley HighSchool. Diane has an MFA in writingand has been employed in websitedevelopment. Her husband, Glenn,is Regional Vice President of theAmerican Cancer Society.

Dan’s preceptor (sponsor to lawschool) was the late Calvin Pollins, andafter graduating from law school, Danwas associated for a short time withthe law firm of Pollins and Pollins inLatrobe. In short order, he becameassociated with Orlando Prosperi, thenthe dean of criminal defense lawyers inWestmoreland County and indeed inWestern Pennsylvania. He was stillassociated with Orlando Prosperi in1968 when he induced me to leave thebig city and come to Greensburg tojoin him and Orlando.

For several years, Dan and Ipracticed with Orlando Prosperi,who had, by that time, formed theAmerican Legal Center in Romewith Dom Ciarimboli and Irv Green,and who essentially disappearedto Italy, visiting Greensburg onlysporadically, and eventually becoming

by Richard H. Galloway, Esq.

Ifirst met the distinguishedjurist, the Honorable Daniel J.Ackerman, when he was neither a

jurist, nor particularly distinguished.Dan was a third-year law student,whom I had met through a mutualfriend. Fate placed us in the samedomestic relations class that stretchedendlessly through afternoon afterafternoon, providing us with morethan ample time to shoot the breeze,

become moreacquainted, and,incidentally,improve ourdrawing tech-niques. Over thenext several years,Dan and his wife,Becky, becameour good socialfriends and Ilearned moreabout him.

Dan was raised in Penn Hillsand Murrysville, graduating fromFranklin Regional High School in1957. He then attended Thiel College,where he majored in history and waspresident of his fraternity, Delta SigmaPhi, known by most Thiel studentssimply as The Animal House, for itssurfeit of athletes. Dan’s particular fieldof concentration was weightlifting andbodybuilding, which he pursued assid-uously at the Kingsley House in EastLiberty and, at times, the East LibertyY, where Bruno Sammartino workedout (the two were never confused forone another). For the DoubtingThomases among you, I have posteda photo of the finely chiseled youth.Dan graduated from Thiel in 1961 andentered the University of Pittsburgh,where he graduated in 1964.

Dan married the former RebeccaRobinson, of Latrobe, in 1962, whileDan was still a law student and Becky


Distinguished Jurist,Honorable Friend

AckermanHas EarnedHis Placecontinued from page 7

�

Judge Ackermanand Dick Galloway

�

The finely chiseled youth in 1958.

continued on page 16

foreign or domestic—building roads,fighting disease, and the enforcementof contracts between consenting

parties. Despite ouridealism—either atthe beginning of ourcareers, or, for themost fortunate, stillremaining at theclose—we’re justpeople. We assumeour cloak and performour role to the bestof our inspirationand ability.

But the stream flows. The rillsdevelop. The jams occur. The currentchanges. And, in the final analysis,we slip our line and are releaseddownstream to the tranquil watersof the lake beyond.

I have never been able to determinewhether the law and our systemchange, thereby affecting the peoplethey touch, or whether society itselfchanges, forcing us to correct andadjust to serve it. A system rooted inprecedent and tradition, that has awillingness and structure allowingchange, is truly a jealous mistress. Itrequires constant tending. The thin


Judge Ober: Fixed Change continued from page 1

lens of day-to-day is not a goodwindow through which to view thatlady; peering back through a thickerlens of 44 years makes it clearer andeasier.

I believe that truth is at the heart ofour justice system. We blithely declarethat a trial is a search for truth. We aretold that spiritually, the truth bringspersonal freedom. Emile Zola, in hisfamous quest for justice, declared thatwhere truth is on the march, it cannotbe stopped. The best memories I havefrom my career, both at the bar andon the bench, are from those instanceswhere truth prevailed in some way,adding another thread to the tapestryof justice for all time.

I am also painfully aware that oursystem has no true tender (coinage)beyond its own integrity. Maintainingthe perception of the authority of thecourts is the only guarantee of theircontinued effectiveness, indeed, theirexistence. The courts, and the rulesof law by which they operate, arepure and impressionable institutions;they are open to hear the myriadof quandaries that may arise in thehuman condition. The rules governingthese institutions are, and should be,

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basic at their core; they should refineand develop in complexity only whena given situation demands it.

These are a few of the changesI have seen in the years since myadmission to the bar:a. Pre-trial discovery (almost the

entire Section 4000 series of thePa. Rules of Civil Procedure) wasrarely used in complex cases, andwas nonexistent in simpler ones.Today, the expense, perpetualgamesmanship, and pretext thatcan accompany discovery add to itscost, thereby delaying litigation andresolution. This is true in the mostbasic of cases.

It naturally follows that pre-trialprocedures, preliminary objections,motions for summary judgment,etc., have assumed increasedimportance. In the 1960s, the legalcommunity was truly self-regulating.Reputation and word-of-mouthprovided its own communitysafeguards. Also, a greater percentageof the cases filed actually went totrial. Trials took place more quicklyand with less expense to the parties.Courts were continuously in trialsession.

b. The concept of alternatives totraditional litigation was notformalized as dispute resolutionat the beginning of my career.Lawyers and their clients either met

�

Judge Ober, 1985

�

Judge Ober has been a perennial volunteerto visit classrooms during Law Day.

you readers too young to remember“real” bar exams and killer cramschools, this was akin to the infusionof information in a decompressionchamber. Fortunately, there wererelief valves. Like rationalizing poolplaying as an osmotic method ofabsorbing constitutional law; or,lighting a fire under your cram-school housemates literally bysetting a fire (accidentally, of course)

in the room thenight before theexam. It buildscharacter (andcan relieve tensionafter the frightdissipates).

Success. Yes,success at last.Again for youyounger readers,

in “older times” wannabe lawyershad a “preceptor” (look it up, it willexpand your vocabulary) who spon-sored the lawyer through law schooland who mentored (with an aspectof slave labor) in preparation foradmission to the practice of law.Jay had one of the great ones, and ahometown lawyer to boot: HenryShaw. Henry was the “Shaw” in thefirm of Scales and Shaw (with somepermeations over the years), theincubator of virtually every lawyerin central Westmoreland County.

Jay went through cram schoolwith two other aspiring lawyers,Henry Shaw, Jr., and George Conti,Jr. All three were at Scales and Shawwhen their law careers began. Jay,being astute, quickly realized that“moving up” meant “moving on”and literally moved upstairs to JoeLoughran’s firm.

From there, he kept on moving,always driven by the core values andstubborn resolve that existed

by John M. Campfield, Esq.

Being a judge is like being aBoy Scout or Girl Scout onsteroids. Be prepared. Very

prepared. The world is coming atyou in high definition and stereo,not with sweetness and gentility,but with headaches and heartaches.When you don the robes, you boarda train and set tracks leading to adark tunnel filledwith surprises. Sowhy would anyonechoose to take theride? Well, as withmost good stories,it begins onceupon a time.

Once upon atime, there wasthis lad, living in arailroad town, later transferred intoa one-industry town, finding hisformative years rooted in the 1950s.Son of hard-working parents: father,a businessman who labored with hishands, and mother, who toiled foryears for others. Brother to oneyounger. Perhaps an inch too short,a pound too light, and a step tooslow to realize high-school glories,but a smart, hard-working kid witha rail for a backbone and an earlyvision of his life’s work.

The lad did well, went off tocollege (Dickinson), drank fullyfrom the well and survived enoughto make it to law school (thatDickinson place again). Now hehad the world exactly where hewanted it. All he had to do wasget through the legal rabbit hole(you know how this part turns out).Now he was ready to tackle the realworld of law. Right?

Well, there is this little thingcalled “passing the bar.” That’s whythey have cram schools. Now, for


or communicated in an effort toresolve differences. The certaintyand acknowledged stability of thelaw provided a clear beacon toguide litigators. Today, ADR rivalsthe very system from which it wascreated, and which was historicallyintended to be the Third Estateof Government under ourConstitution.

c. The courts were not involved inthe family beyond those aspects ofthe Criminal Code that punishedviolence and abuse. The courtsstopped “at the front door of thehome.” Today, over one-third ofour local judges, and over half of ourjudicial budget, are dedicated to theumbrella of family law that dealswith the most intimate and delicateaspects of relationships betweenspouses, divorced persons, andchildren for the duration of theirentire childhood. It is a soberingresponsibility.From these small quiet memories to

the feelings of immense gratitude Ihave from my time in the law, I haveand always will spend my efforts in itsservice. My impressions are beyond1,000 words.

I am out of words. �

FixedChangecontinued from page 9

Perseverance andPreparation Paid Off

continued on page 12�

Judge Ober and his wife, Carol

�

Reg Belden and Judge Ober

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WHAT JOBS DID YOU HAVEBEFORE BECOMING A LAWYER?

Shoemaker, Musician, CPA

WHICH WAS YOUR FAVORITEAND WHY?

They said I fixed shoes like alawyer and practiced law like a shoe-maker, so that just left me with music.

WHAT IS THE FUNNIESTTHING THAT’S HAPPENED TOYOU AS AN ATTORNEY?

Being associated with Dennis J.Slyman for over 40

years.

WHAT ISTHE QUALITYYOU MOSTLIKE IN ANATTORNEY?

Competenceand humility.

A

Q

A

Q

A

Q

A

Q Pennsylvania,and PalmBeach County,Florida.

WHATIS YOURIDEA OFPERFECTHAPPINESS?

I don’tbelieve there is such a thing as perfecthappiness in this life, but perhaps theclosest thing is my family and fourgrandchildren.

WHAT IS YOUR MOSTTREASURED POSSESSION?

Memories and experiences withpeople like Orlando Prosperi, IrvingGreen, Al Nichols, Judge Richard E.McCormick, Dennis J. Slyman, MarioMisci, John Rooney, and ArchbishopTommaso Caputo.

A

Q

A

Q

WHAT IS YOUR FAVORITEJOURNEY?

Travel to Italy and Malta.

WHAT IS YOUR GREATESTREGRET?

No regrets. I have had a great life.

WHO ARE YOUR HEROESIN REAL LIFE?

I believe that the real heroes inlife are those who plod and perseverein their everyday tasks.

WHAT ADVICE WOULD YOUGIVE TO ATTORNEYS NEW TOTHE PRACTICE OF LAW?

Be respectful, honest, and humbleand don’t take yourself too seriously.

WHAT DO YOU CONSIDERYOUR GREATEST ACHIEVEMENT?

Establishing an equally unremark-able practice in Westmoreland County,

A

Q

A

Q

A

Q

A

Q

A

Q


Spotlight on Dominic Ciarimboli


WHAT IS IT THAT YOUMOST DISLIKE?

Arrogance and deceit.

WHAT IS YOUR GREATESTEXTRAVAGANCE?

I like to believe that I exercisemoderation in all things.

WHAT TALENT WOULD YOUMOST LIKE TO HAVE?

An accomplished musician.

WHAT DO YOU VALUE MOSTIN YOUR FRIENDS?

Q

A

Q

A

Q

A

Q

by Charles J. Dangelo, Esq.

Ihave had the good fortune to workclosely with several judges in thecourse of my legal career. Each of

them had an impact on my develop-ment and identity as a lawyer. In lightof Judge Ober’s retirement from thebench, I have been reflecting on myeight years of working as his law clerkand his contribution to my evolutionas a lawyer.

Judge Ober is a master of the subtlequalities that make a person an effectivedecision-maker. He has an instinct forfairness, is sensitive to the interests ofcounsel and parties, and is willing tolisten. In him, the legal and analyticalskills of a lawyer are tempered by astrong dose of emotional intelligence.Attorneys have voiced their appreciationfor the hospitable atmosphere in JudgeOber’s courtroom and his approach todeciding cases.

Before working for Judge Ober, Iwas employed by an appellate court,where cases are decided on the coldrecord and where creating a welcomingenvironment for parties and counsel isnot a priority. By observing JudgeOber, I learned the nuances of fair andeffective decision making, and I will

throughout his life. He alwaysunderstood and appreciated thehuman condition, particularly thecondition of those less fortunate.In his practice (as is also reputedin his poker playing) he neitherbacked down from man, norchallenge; and his clients benefitedfrom that.

Some say he always had thegoal of becoming a judge. If so,it never affected his service to hisclients and the law. The “jealous

mistress” of thelaws alwaysprevailed.

Perseveranceis a quality thatnot all enjoy. Itis not always aneasy quality toexperience. Jayhas always hadit; perhaps best

exemplified by his “third time’sa charm” election to the bench;having garnered victories in bothprimaries (as a Republican,no less) and leading all judicialcandidates in the general election.

He has served the people ofWestmoreland County withdignity, integrity, intellectualhonesty, respect, and continuingresolve.

As A.C. Scales used to say to usafter discussion of a case: “Fellows,do the best you can.” Jay did, fullyand at all times, and for that wethank him.

While this article is about Jay,I would be remiss if I failed toadd that Jay is the husband ofCarol, his beautiful mate, truepartner, and fellow farmer. Jay isa loving and nurturing father ofJohn and William; and adoringgrandfather of four “spoiled”grandchildren (with an additioncoming soon). �


Spotlight continued from page 11

carry those skills with me for theremainder of my career.

Judge Ober has a keen interest inimproving the law and thinks deeplyabout the nature of justice. We wouldroutinely discuss these questions andhow they would impact the casesbefore the Court. These were notmerely academic discussions, but werea means to cultivate practical ideasthat could be implemented in rules ofcourt or decisions. Judge Ober createdan atmosphere that rekindled myinterest in improving law and justice.

My years with Judge Ober werethe best of my career. WestmorelandCounty was fortunate to have himon the bench; he will be greatlymissed. �

Loyalty and fealty.

WHICH LIVING PERSON DOYOU MOST ADMIRE?

Attorney Andrew J. Gleason, wholives in Johnstown, Pa., and is now104 years old. Andy is the epitome ofgreatness as a professional, a friend,and a human being.

WHAT IS YOUR MOTTO?

The proverb, “He lives long thatlives till all are weary of him.” �

A

Q

A

Q

A

Perseverancecontinued from page 10

�

Judge Hathawayand Judge Ober

�

Chuck Dangelo (left) with Judge Ober(center) and staff at the 2009 HolidayDinner Dance.

Fortune Favored Us

by S. Sponte, Esq.

When she first called me totake this landlord/tenantcase, I told her no. I

always tell her no, but she neverbelieves me. Our bar association’spro bono coordinator is so highlyregarded for her devotion to herwork and the way she cares about theplight of the bereft, the downtrodden,the disadvantaged, that most ofmy colleagues are simply unableto resist her heartfelt supplicationsfor volunteers. I can, but then shepromises me cookies.

If I still resist, she tells me thetenants are lovely folk, salt of theearth who’ve recently been pepperedby bad luck, and she tells me that thelandlords are mean and cheap and thatthey kick puppies. Then she pushesme up onto the donkey, puts a lancein my hand and shouts, “Oooooh,look, windmills!”

the have-nots, Ialways sign up.I thank my fatherfor my empathiesin this regard andevery time I dosuch a case I can’thelp but feel I’mpaying homage tohis memory.

Personal crusades aside, I’vealways found litigation to be far moreproductive and enjoyable when theother side is unrepresented. Yes, it issomewhat akin to the fun of takingcandy from a baby, but lest you thinkthat a sad commentary on lawyering,may I remind you that the one thingwe as a society don’t need is morefat babies.

“Make up a new file,” I told mysecretary. “Bastards v. Jones.”

“Who do we represent?” shereplied with the jocular insouciance

Despite her endeavors, it wasfantasies neither cookie nor Quixoticthat made this matter my latest caseaccompli, no. Rather, it was somethingfar more primitive than that. Usuallyin these cases the tenant, for want of

a dollar, has free counsel and thelandlord, for want of the willingnessto part with one, has none. Whenthe complex economic and socialdynamics of modern society combineto impoverish the haves and empower



To-Wit: The Balance of Power

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of a woman who’s worked for me forway too long.

The magistrate’s hearing mighthave turned out better had not themagistrate been so hell bent onfairness. But the landlord would nowhave to take an appeal and would beobliged to engage and pay counsel todo it. The balance of power wouldshift even more dramatically towardsmy client, leaving only him untetheredto costs. His avowed determination tolitigate his claim all the way to theSupreme Court now, however, seemedmuch more perilous to me.

Shortly thereafter, a local colleaguecalled to advise that he was nowrepresenting Landlord. Before I couldfire off a warning salvo by telling himI was pro bono, he fired a broadside ofhis own.

case with pro bono lawyers on bothsides? World War II took less time.We settled the case in three minutes,each client getting less than theywanted but way more than theydeserved.

Years ago, I had a professionalmentor who always cautioned againsttaking a case with an unrepresentedlitigant. “In the long run,” he used tosay, “you’re in for a long run.”

Now that I think about it, perhapshe was right. Without the properbalance of power, maybe no case isworth taking. Maybe, just maybe,there aren’t that many cookies in thewhole wide world. �

© 2009, S. Sponte, Esq.Can’t get enough Sponte? More articlesare online at www.funnylawyer.com.

“I know you’re pro bono on this,”he said, “but so am I. Landlord’s wifeis my first cousin.”

There was clearly a mournful toneto his usually cheery voice and I knewat once we both assessed the situationexactly the same. A landlord/tenant


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To-Wit: The Balance of Power continued from page 13

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Of 28 cases listed for theSeptember 2009 Civil JuryTrial Term, 10 settled, 12

were continued, bankruptcy stayedone case, a non-jury trial was sched-uled in one, two verdicts were entered,and two cases were held to the nexttrial term. The jury verdicts for theSeptember 2009 civil trial term aresummarized below.

ALLSERVE THERAPIES, INC., A

PENNSYLVANIA CORPORATION;

ALLSTAR THERAPIES, INC., A

PENNSYLVANIA CORPORATION;

DANIEL J. WUKICH; DANIEL P.

WUKICH; AND NANCY AMOROSE

V.

DALE R. HOHMAN

NO. 6497 OF 2005

Cause of Action: Breach ofFiduciary Duty

Defendant was a part owner, officer,and employee of Plaintiff-corporationsduring the relevant time period ofMarch 2000 until his resignation inSeptember 2002. It is during this timeperiod that a subordinate employeeutilized a stamp bearing a facsimileof Defendant’s signature to issueunauthorized checks to herself, whichthe bankruptcy court determined to beapproximately $50,000.00. Plaintiffscontend that Defendant owed afiduciary duty to them, as ownersof Plaintiff-corporations, and tothe Plaintiff-corporations, and thatDefendant breached his fiduciary dutyby either turning a blind eye to thescheme or by failing to detect it.

Defendant denied that he breachedhis fiduciary duty. He also denied thathe knew or should have known of theunauthorized checks and argued thathe should not be held responsible foranother employee’s criminal acts.

Plaintiff ’s Counsel: Brian D.Flaherty, Karlowitz Cromer &

company to obtain Mr. Scheibler’spre-application health recordsand rescind the policy based uponincorrect answers in the application.After denying Mrs. Scheibler’s claimfor proceeds, the insurance companyreimbursed Mrs. Scheibler for theinsurance premiums paid.

Plaintiff admitted that one answeron the application described abovewas incorrect, but claimed that Mr.Scheibler’s health history was disclosedto Defendant, who completed theapplication incorrectly. Plaintifftestified that Defendant-agentmisrepresented that Mr. Scheiblerwould be “guaranteed” this particularlife insurance policy despite hishealth history. Plaintiff argued thatDefendant was liable to Plaintiff inthe amount of $20,000.00, whichrepresented the proceeds of the policy.The insurance company and theinsurance broker were grantedsummary judgment prior to trial.

Defendant testified that hecompleted the application and filled inthe answers as they were conveyed tohim by Mr. Scheibler. Furthermore,Defendant testified that he neverguaranteed the policy of insurance thatwas applied for by Mr. Scheibler. Attrial, the jury was asked to completespecial findings on the elements ofnegligent misrepresentation, fraudulentmisrepresentation, and violation of theUnfair Trade Practices and ConsumerProtection Law (UTPCPL).

Plaintiffs’ Counsel: Mary EllenChajkowski, Pgh.

Defendant’s Counsel: Donald R.Rigone, Fisher Long & Rigone, Gbg.

Trial Judge: The Hon. Daniel J.Ackerman

Result: Molded verdict in favor ofDefendant. The special findings as toeach cause of action were answered inthe negative. �

Flaherty, P.C., Pgh.Defendant’s Counsel: Ned J. Nakles,

Nakles and Nakles, LatrobeTrial Judge: The Hon. Daniel J.

AckermanResult: Verdict in favor of

Defendant.

DONNA SCHEIBLER

V.

MATTHEW D. TRUITT

NO. 677 OF 2006

Cause of Action: Misrepresentation(Negligent and Fraudulent)—Violation of the UTPCPL

Plaintiff ’s late husband, WilliamScheibler, submitted an applicationfor a $20,000.00 life insurance policythrough Defendant-insurance agent.The application was prepared at thehome of Mr. and Mrs. Scheibler,where Defendant asked healthquestions of the Scheiblers andthen completed the application. Mr.Scheibler signed that the informationcontained in the application was trueand correct, and a life insurance policywas subsequently issued. However, Mr.Scheibler died within one year of thepolicy’s issuance, which permitted the


September 2009 Civil Trial Term

Jury Trial Verdictsby Rachel Yantos, Esq., Charles J. Dangelo, Esq., and Thomas L. Jones, Esq.

a priest, but that’s another storyaltogether.

Dan and I practiced law togetherfor 12 years as Ackerman andGalloway, handling civil and criminaltrials, and family law, and Dan inparticular, handling Orphans’ Courtwork. We also did some real estate. Insum, it was a typical WestmorelandCounty small office, general practice.Those were halcyon days.

In the late 1970s, Dan wasapproached by the Republican Party torun for judge. Although the prospectsfor getting elected as a Republican inWestmoreland County at that timewere not particularly encouraging, itwas an interesting challenge to Dan,and, in typical fashion, he ran a veryorganized campaign and did far betterin the election than anyone anticipated,although not enough to be elected.

In 1980, Governor RichardThornburgh appointed Dan to theCourt of Common Pleas. In 1981,he ran for election and waselected to a ten-year term.He stood for retention in1991, and again in 2001,and was easily retained,with the overwhelmingsupport of the membersof the Westmoreland BarAssociation.

While serving on thebench in WestmorelandCounty, Dan has headed thecriminal division, served inthe civil division, and beenPresident Judge from 2002to 2007. His activities havenot been restricted to thebench: he has been veryactive with the WBA, servedas one of the founders andPast President of the Ned J.Nakles American Inn ofCourt, is an editor of thesidebar, and has participatedin numerous BarFliesproductions (who can everforget his sultry “Easy Rider”

2008, and was the recipient of theArthur St. Clair Historic PreservationAward of 2008.

When not judging, Dan likes tofly-fish and has dabbled in paintingwatercolors. In the past, he engagedin competitive trap shooting andhas enjoyed photography for anumber of years.

Reciting his curriculum vitaedoes not paint an adequate picture.Above all else, Dan has always beenan interesting and fun person to bearound. Those who know him wellknow that he has a finely tuned senseof humor and enjoys a good joke, evenwhen it is on him. He is unfailinglypolite and civil to all he meets or comebefore him. He is so well preparedand so knowledgeable about the lawthat when I practiced law with him,I stopped reading the advance sheetsas it was redundant. I needed only tolook in the ever-growing Rolodexesthat Dan kept relative to the latest

law. They were within daysor, at most, weeks of beingabsolutely current. When hebecame a judge and left ourpartnership, I should havesued him for custody of theRolodexes because I was lostwithout them for a periodof time.

As a transplantedPittsburgh lawyer, it hasalways given me greatpride when my Pittsburghcolleagues wax enthusiasticabout the quality of thejudges on our bench andparticularly about my formerpartner and my dear friend,Dan Ackerman.

For 15 years as a lawyer,and 30 years as a judge,Daniel Ackerman has been amodel of professionalism,integrity, knowledge,and compassion. Wewould all do well toemulate him. �

biker portrayal?). He has also servedas the chair of the WBA Bench/BarConference and currently heads theWestmoreland Bar Foundation asits chair. On a statewide basis, Danwas the past chair of the civil sectionof the Pennsylvania Conference ofState Trial Judges.

His interest in history has beensuch that he initiated and worked onthe 2007 Courthouse Centennial andbook, served on the Fort Pitt MuseumBoard of Directors from 2007 to


Distinguished Jurist continued from page 8

�

Don and Karen Snyder, Jim and SusanAntoniono, and Becky and Dan Ackermanat a Dine Around event in 2007.

Editor’s note: The following article wasslipped under our door in a plain brownenvelope, its origins unknown. Lest you,dear reader, assume this affords youlicense to follow suit, bear in mind thatthis is well written and has a point.

Today, in what some believemay be his last jury trial priorto retirement, Judge Douglas

Applebaum gave some surprisinglycandid instructions to a jury in a caseof little importance.THE JUDGE: Members of the jury,

counsel, in their closing arguments, asthey always do, thanked you for yourattention. Considering the nature ofthis case, I will go one step furtherand thank you for returning after thevarious recesses.

Juror number twelve, I see youhave raised your hand. Do you have aquestion? And if so, please state yourname for the record.THE JUROR: Soup, your honor,

that if you have missed some of thetestimony and arguments that you arein an enviable position, and knowing

that, the other jurorsmay well elect you as theforeperson. Your requestis denied.THE JUROR: Your

honor is most kind.THE JUDGE: You will

recall, members of thejury, that the plaintiff,Mrs. Sookie Tawdry,whose counsel hasreminded you numeroustimes is a widow, hasbrought this tort actionto recover damages fornegligent infliction of

emotional distress, loss of personalproperty, and loss of consortium.These claims arise from the fact thatthe defendant, Albert B. Crass, drovehis motor vehicle on the street before

I’m Leroy Soup, and I would liketo know if I could change seats withjuror number one, I’m having troublehearing you, and I’ve hadtrouble throughout theentire trial.THE JUDGE:Well

Mr. Soup, I’m afraid thatmight disorient counsel.Besides, in civil cases,hearing is highlyoverrated. I, myself,am somewhat hard ofhearing; in most trialsI would say that I hearabout two-thirds of thetestimony and even lessof counsels’ arguments,and it has never been animpediment in making a decision.Many things are said at trials that areunnecessary and even misleading.Often they are intended to interferewith the jurors’ efforts to keep anopen mind. I would say, Mr. Soup,


Judge Applebaum’s Last Charge


the Tawdry house, striking and killingMrs. Tawdry’s pet goose, which oftenduring the course of this trial has beenreferred to as “Toby.” Mrs. Tawdry,while seated on her porch glider at thetime, didn’t see the fateful collision

because of a high hedgeplanted along the front ofher property. Rather, sheheard an abbreviated“honk,” which she testifieddid not sound like anautomobile horn, and sawa plume of white feathersrising above the hedge which

then drifted into her yard. Mr. Crass istherefore the sole eyewitness.

You have heard the testimony ofseven expert witnesses, three accidentreconstruction experts, two ornitholo-gists, a psychiatrist, and a taxidermist,all of whom should be regarded withthe utmost suspicion.

While Mr. Crass admits that hisvehicle, an antique Ford Falcon, didbring down the goose, he contends that

favor of Mr. Crass on that count.As to the remaining issues, I suggest

that you spend little or no time onthem unless you wish to stretch yourdeliberations out to a point where youwill have earned a free lunch on thecounty. I say that because the attorneysin this case have so little confidencein your ability to reach a just, or evencoherent, verdict that they have enteredinto what is known as a “high-low”agreement. The essence of this agree-ment is that your decision will meannothing unless, by mere chance, it fallsinto a narrow no-man’s land betweentwo arbitrary and unrealistic figuresagreed to by parties who do not wishto be burdened by either your verdictor a fair compromise. With this inmind, you may struggle and do yourbest with the evidence at hand, or byyour verdict you may request that Iremand the parties and their counselto the custody of the sheriff. Thematter now, ladies and gentlemen,rests in your capable hands. �

Toby’s presence on the roadway consti-tuted a sudden emergency and that hisconduct should be measured by a morelenient standard. That, members of thejury, is for you to decide.

Undoubtedly you will spendsome time debating the mitigationof damages argument advanced byMr. Crass’ counsel; that is, instead ofhaving Toby stuffed and placed uponthe coffee table, that Mrs. Tawdryshould have roasted him and servedhim up for Sunday dinner. This is aclose question, members of the jury,for you to consider.

Another issue that is more obviousin its resolution is Mrs. Tawdry’sclaim for loss of consortium.Notwithstanding Mrs. Tawdry’stestimony that Toby provided herwith more comfort and societythan her late husband, Terrance, oursupreme court has held that the deathof a fowl will not give rise to a loss ofconsortium claim. Accordingly, I amdirecting you to return a verdict in


Judge Applebaum’s Last Charge continued from page 17

December 1, 2009Dear Friends:It has been Hooker & Broker’s privilege over the past

17 years to practice law in Westmoreland County and towork with our excellent judicial bench and bar and ourvalued clients. With Peggy’s decision to limit her practice tothe representation of Bethlen Communities in Ligonier,Pennsylvania, we will be dissolving Hooker & Broker, LLC,at the end of 2009.Beginning January of 2010, Peggy may be reached at her

new office telephone number, (412) 638-7732, and her newbusiness mailing address will be 1709 South BraddockAvenue, #134, Pittsburgh, Pennsylvania 15218. Linda willhave the Law Office of Linda Broker at the same location,533 Rugh Street, Suite 3, Greensburg, Pennsylvania,telephone (724) 838-8895. Linda will continue to welcomeand appreciate your referrals and business, includingnursing home and long-term care planning, MedicalAssistance issues, and Social Security disability.We thank you for all of your good will and friendship and

the many kind referrals that you have made to Hooker &Broker, LLC. We extend our wishes for a happy and healthy2010.

Warmest regards,Peggy HookerLinda Broker


wba news

Actions ofthe BoardSEPTEMBER 15, 2009• Joint bar leaders/judges meeting is

set for October 20, with the followingtopics on the agenda:—UPL—Arbitration limits—Transition of judicial assignments—Inns of Court participation

• Cindy Miklos from FindLaw hasagreed to work with the WBA toimprove the WBA website.

• Young Lawyers report that afund-raiser for CASA on September30 at The Headkeeper in Greensburgis confirmed.

• Invitations for Fall Gathering weremailed to Medical Society presidentand Executive Director; MedicalSociety will notify their membersabout this joint event.

• Agreed to have Executive DirectorKrivoniak attend the American BarAssociation Annual Lawyer Referraland Information Service Workshop inBaltimore. �

Past Presidents SenateMeets with WBABoard

The Past Presidents of the WBAwere invited to breakfast withthe current Board of Directors

at the Greensburg Country Club inOctober to analyze the workings ofthe WBA and to provide a forumto discuss the group’s future plans.Front row: Edgar P. Herrington, Jr.,Vice President Michael J. Stewart,President James R. Antoniono. Secondrow: Stuart J. Horner, Jr., William J.McCabe, Gary A. Falatovich. Thirdrow: Morrison F. Lewis, Jr., DianeMurphy, Director David S. DeRose,Richard H. Galloway. Fourth row:Richard F. Flickinger, Director John K.Greiner, President-Elect Donald J.Snyder, Jr., Rebecca A. Brammell,Barbara J. Christner, Jack L. Bergstein.Back row: Kenneth B. Burkley,Vincent J. Quatrini, Timothy J. Geary,James R. Silvis. �

LawSpeak

“He was that dreadful sort ofwitness, the one who can’t waitto give evidence, and who hasbeen longing, with unconcealedimpatience, for his day in court.”

— John Mortimer, “Rumpoleand the Genuine Article”

Pro Bono Coordinator Iva Munkpresents Terry O’Halloran with thePBA’s 2009 Pro Bono Award. This isthe third year in a row that Terry hasbeen honored by the PBA.

WBA President James R. Antonionojoined Gov. Ed Rendell and the firstlady at the governor's mansion for areception held to thank volunteersof the Get Help Now, Pennsylvania!program, which ran from Julythrough September. Attorneys andfinancial representatives providedfree assistance and referrals to over110 Westmoreland County residentson issues related to credit, financeand bankruptcy.

The Hon. James R. Kelley, WBAExecutive Director Diane Krivoniak,and Richard H. Galloway were onhand for the dedication ceremony ofthe Pennsylvania Judicial Center inHarrisburg on December 2, 2009.The center serves as the adminis-trative hub for Pennsylvania’sUnified Judicial System and thehome of the Commonwealth Court.

QuickTakes

Westmoreland Bar Association129 North Pennsylvania AvenueGreensburg, PA 15601-2311

www.westbar.org

PRESORTEDSTANDARDU.S. POSTAGE

PAIDGREENSBURG, PAPERMIT #678

18 Courthouse closed in observanceof Martin Luther King, Jr., Day

19 Family Law Committee, Noon

Board Meeting, 4 p.m.

JANUARY 2010

1 Courthouse closed in observanceof New Year’s Day

14 Membership Committee, Noon

C A L E N D A R O F E V E N T S L A W Y E R SC O N C E R N E DF O R L A W Y E R SC O R N E R

• The 12-step recoverymeeting, exclusively forlawyers and judges, is indowntown Pittsburgh everyThursday at 5:15 p.m. Forthe exact location, callPennsylvania LawyersConcerned for Lawyers at1-800-335-2572.

• LCL has a new website atwww.lclpa.org. Attorneysand judges will find informa-tion on how LCL can helpthem, a member of theirfamily or a colleague whomay be in distress. It isconfidential and easy tonavigate. Visit it today.

• Lawyers ConfidentialHelp Line: 1-888-999-1941.Operates 24 hours a day.

All committee meetings and activities will be held at the WBA Headquartersunless otherwise noted. Visit www.westbar.org for more information

about activities and CLE courses, or to register online.

Lawyer Referral Service of theWestmoreland Bar Association

Looking for an inexpensiveand effective marketingplan for 2010?

You found it.

The Lawyer Referral Service is now accepting applicationsfor 2010. If you are a full-participating member of theWBA and need an application, call 724-834-6730.

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